Record and brief — Clark v. Oregon

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FILED

81-629 SEP 26 1981

ALEXANDER L. STEVAS.

IN THE pan

SUPREME COURT OF THE UNITED STATES

October Term, 1981

No,

ANDREW CLARK, Petitioner

Vv.

STATE OF OREGON, Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF OREGON

Robert J. McCrea

Paul Rk. Frisch

MORROW, McCREA & DIVITA, P.C.

1147 High Street

Fugene, Oregon 9%7401

(503) 485-1182

Counsel for Petitioner

QUESTIONS PRESENTED

(1) Are the Equal Protection

provisions of the Fourteenth Amendment to

the United States Constitution violated by

the Oregon Constitution and statutory pro-

visions?

Pursuant to Article VII

(amended), Section 5 of the Constitution

of the State of Oregon and Oregon Revised

Statutes, in felony criminal cases the

prosecution is given unqualified discre-

tion to use one of two separate and dis-

tinct alternative processes.

Preliminary Hearing Process: A

hearing before a magistrate where probable

cause must be established. This is an

adversary setting in which the defendant

and his counsel participate.

Grand Jury Process: A secret

proceeding before seven grand jurors. Only

o2e@

the prosecutor and prosecution witnesses

are heard.

The grand jury process does not

accord a defendant any of the following:

ORS

135.070

135.073

135.075

135.080

135.085

135.090

135.095

135.100

Right to information as

to charge, right to coun-

sel, advice of rights

concerning any statements

given.

Exclusion of any state-

ment by defendant when

not advised of rights.

Right to assistance of

and in obtaining counsel.

Provision for appointed

counsel's affidavit of

expenses; payment of

expenses and fees.

Right to subpoena wit-

nesses.

Right to cross-examina-

tion of adverse wit-

nesses.

Right of defendant to

make or waive making a

statement.

Right of defendant to

make limited statement.

10.

ll.

12.

13.

14.

ORS

135.105

135.115

135.125

135.135

135.145

135.155

-3-

Provision for use of

defendant's statement

before grand jury or on

trial.

Requirement of memorandum

of defendant's waiver of

right to make statement.

Provision for examina-

tion of defendant's wit-

nesses.

Right to exclusion of

witnesses during examina-

tion of others.

Provision for memorandum

relative to witnesses.

Provision for retention

of statements and deposi-

tions by magistrate;

inspection.

All of the above are accorded a

defendant processed through the prelimi-

nary hearing process.

Petitioner.

All of the above were denied

Objection to being prosecuted

by the grand jury process was raised by

timely motion.

(2) Are the Due Process and

Equal Protection provisions of the

-4-

Fourteenth Amendment to the United States

Constitution violated by Oregon's stat-

utes relating to the granting of witness

immunity in criminal proceedings?

The prosecution is empowered by

ORS 136.619 to grant the broader "trans-

actional" form of immunity to reluctant

witnesses. No provisions exist whereby a

defendant can grant any form of immunity

whatsoever to reluctant witnesses. If a

defendant could grant the narrower "use"

form of immunity, the imbalance which now

exists in the power to compel the testi-

mony of recalcitrant witnesses would be

greatly reduced without in any way inter-

fering with the State's subsequent ability

to prosecute such a witness.

Further, the decision-making

process whereby a prosecutor determines

whether to immunize a particular witness

is not now governed by any articulable

-5-

standards, and, being wholly discretionary

in nature, is not subject to any judicial

scrutiny either before or after the immun-

ity grant is made.

No grant of immunity was ever

offered to Petitioner, though a number of

other culpable individuals received such

grants, and no written standards existed

to guide the prosecution in its otherwise

arbitrary determination. Petitioner

raised timely objection to this procedure.

-6-

TABLE OF CONTENTS

Questions Presented,....ccecececececcecs

Table Of Contents .,.....ceeecceceecccecs

BEES GE RGGRSTECAOSsccccccccccccccccese

Opinions BelOW,........cceeeceeeceeeeeeee

Jurisdiction

Date of Entry of Judgment, ...........eee0-

Statutory Provision for Jurisdiction......

Constitutional and Statutory

Provisions ae een eee

Statement of the a

Argument Amplifying Reasons for

Granting ee eee nengane

CONCLUSION. ccccccccccccceccccccecocceccese

Appendix A - Table of Contents........-

Opinion of the Oregon Supreme Court.......

Opinion of the Oregon Court of Appeals.... A-31

Orders of the Trial Court Denying

Motions to Dismiss the Indictment......... A-34

Appendix B - Table of Contents........

B-1

aJa

TABLE OF AUTHORITIES

Cases

Brown v. Board of Education, 347

U.S. 483, 74 S.Ct. 686, 98 L.Ed.2d

873 (1954)

Coleman v. Alabama, 399 U.S. 1, 90

S.Ct. 199, 26 L.Ed.2d 114 (1970)

Gideon v. Wainwright, 372 U.S. 335,

83 S.Ct. 792, 9 L.Ed.2d 789 (1963)

Hamilton v. Alabama, 368 U.S. 52,

82 S.Ct. 157, 71 L.Ed.2d 114 (1961)

Kastiger v. United States, 406 U.S.

411, 92 S.Ct. 1653, 32 L.Ed.2d 212

(1972)

Miranda v. Arizona, 384 U.S. 436,

86 S.Ct. 1602, 16 L.Ed.2d 694 (966)

Morrisey v. Brewer, 408 U.S. 471

92 S.Ct. 2593, 33 L.Ed.2d 484 (972)

Plessy v. Furgeson, 163 U.S. 537,

16 S.Ct. 1138, 41 L.Ed. 256 (1896)

San Antonio School District v.

Rodriguez, 411 U.S. 1, 93 S.Ct.

1278, 36 L.Ed.2d 16, reh den

411 U.S. 959, 93 S.Ct. 1919,

36 L.Ed.2d 418 (1973)

State Bd. of Elections v. Socialist

Workers Party, 440 U.S. 173, 99

S.Ct. 983, 59 L.Ed.2d 230 (1979)

Pages

28,29

-8-

Cases (Cont)

Wardius v. Oregon, 412 U.S. 470,

93 S.Ct. 2208, 37 L.Ed.2d 82 (1973)

Washington v. Texas, 388 U.S. 14,

87 S.Ct. 1920, 18 L.Ed.2d 1019

(1967)

White v. Maryland, 373 U.S. 59, 83

S.Ct. 1050, 10 L.Ed.2d 193 (1963)

Williams v. Florida, 399 U.S. 78, 90

S.Ct. 1893, 26 L.Ed.2d 446 (1970)

Constitutional & Statutory

Provisions:

U.S. Constitution, Amendment XIV

Oregon Constitution, Article VII (5)

28 U.S.C. 1257 (3)

Oregon Revised Statutes:

ORS 131.005(9) (a)

ORS 132.090

ORS 132.310

ORS 135.070

ORS 135.073

ORS 135.075

Pages

28,29,31

1,4,12,17

18,30

1,13-14

2,15,19

2,15

2,15,19

AER RRRAR AB BS

135.080

135.090

135.095

135.100

135.105

135.115

135.125

135.135

135.145

135.155

136.617

136.619

-9-

ORS (Cont) Pages

2,15

2,15,19

2,15

2,15,19

3,15,19

3,15

3,16

16,27 ©

4,16,27

-10-

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1981

No.

ANDREW CLARK, Petitioner

STATE OF OREGON, Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF OREGON

Petitioner prays that a Writ

of Certiorari issue to review the judg-

ment of the Supreme Court of the State

of Oregon, made and entered in the

above cause on July 28, 1981, reprinted

in Appendix A, nereto infra, page A-l.

-li-

OPINIONS BELOW

The Letter constituting a denial

by the Oregon Supreme Court of Peti-

tioner's Petition for Rehearing is

reprinted in Appendix A, hereto, infra,

page A-l.

The opinion of the Supreme Court

of the State of Oregon is reprinted in

Appendix A, hereto, infra, pages A-2-30,

cited as 291 Or 231, _ P2d __—s (19811).

The opinion of the Court of

Appeals for the State of Oregon is

reprinted in Appendix A, hereto, infra,

pages A-31-34, cited as 47 Or App 389, 615

P2d 1043 (1980).

The Orders of the Trial Court

denying Petitioner's Motions to Dismiss

the Indictment are reprinted in Appendix

A, hereto, infra, pages A-36-37 and

A-38-39.

ol2-<

JURISDICTION

The judgment of the Supreme

Court of the State of Oregon was made and

entered June 23, 1981.

Within the time permitted,

Petitioner filed a Petition for Rehearing

which was denied by the Supreme Court of

the State of Oregon by letter order dated

July 28, 1981, as set forth in Appendix A,

hereto, infra, page A-l. The jurisdiction

of this Court is invoked under 28 U.S.C.

§ 1257 (3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The United States constitutional

provision involved in both Questio:s Pre-

sented is the Fourteenth Amendment:

Amendment XIV "* * * nor shall

an state deprive any person of

life, liberty, or property with-

out due process of law; nor deny

to any person within its juris-

diction the equal tection of

the laws." “a

-13-

The Oregon constitutional pro-

vision involved is Article VII (amended),

Section 5, subsections (2) through (6):

Section 5. Juries; indict-

ment; information; verdict in

civil cases.

*x**

(2) A grand jury shall con-

sist of seven jurors chosen by

lot from the whole number of

jurors in attendance at the

court, five of whom must con-

cur to find an indictment.

(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 a crime punishable

as a felony if the person

appears before the judge of

the circuit court and know-

ingly 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

-14-

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.

(6) An information

shall be substantially in

the form provided by law

for an indictment. The

district attorney may

file an amended indictment

or information whenever,

by ruling of the court, an

indictment or information

is held to be defective in

form.

*x**e

First Question Presented:

The Oregon Revised Statutes

involved are the applicable statutes

listed under First Question Presented,

supra, at page l. The full text of the

statutes is set forth in Appendix B,

infra, pages B-1-8.

ORS 132.090 Presence of persons at

sittings or deliberations

of jury.

ORS

132.310

135.070

135.073

135.075

135.080

135.085

135.090

135.095

135.100

135.105

135.115

135.125

135.135

135.145

-15-

Inquiry into crimes; pre-

sentation to court.

Information as to charge,

right to counsel, use of

statement and preliminary

hearing.

Statement by defendant

when not advised of rights.

Obtaining counsel.

Affidavit on court appoin-

ted counsel.

Subpenaing [sic] witnesses.

Examination of adverse

witnesses.

Right of defendant to

make or waive making a

statement.

Statement of defendant.

Use of statement before

grand jury or on trial.

Memorandum of waiver of

right to make statement.

Examination of defendant's

witnesses.

Exclusion of witnesses

during examination of

others.

Memorandum relative to

witnesses.

-16-

ORS 135.155 Retention of statements

depositions by magistrate;

inspection.

Second Question Presented:

The Oregon Revised Statutes

involved are the applicable statutes

listed under Second Question Presented,

supra, at page 3, and reproduced in

full in Appendix B, infra, pages 7-8.

ORS 136.617 Proceedings to compel

witness who may be

incriminated thereby to

testify.

ORS 136.619 Immunity of witness com-

pelled to testify.

STATEMENT OF THE CASE

This is a criminal case. The

Petitioner was charged by the Benton

County Grand Jury with the offense of

Theft in the First Degree.

Prior to trial, the Petitioner

filed two separate Motions to Dismiss the

Indictment encompassing the issues raised

-17-

herein under Questions Presented, supra,

at p. 3. In each motion, a violation of

the Fourteenth Amendment to the United

States Constitution was alleged. The

trial court denied each motion noting in

each instance that federal questions had

been raised. See Appendix A, infra, pp.

A-36-38.

Upon trial, Petitioner was con-

victed by a jury of the lesser included

offense of Theft in the Second Degree.

Petitioner was sentenced to one

(1) year imprisonment. He was bench-

paroled after serving four (4) months.

On appeal to the Oregon Court

of Appeals, the Petitioner raised the

denial of the two Motions to Dismiss the

Indictment as error. In an opinion

affirming the trial court's denial of

each motion, the Court of Appeals recog-

nized that Petitioner based his motions

-18-

upon the Fourteenth Amendment to the

United States Constitution. See

Appendix A, infra, p. A-32.

On Review to the Oregon Supreme

Court, Petitioner again raised the denial

of both motions as a ground for appeal,

citing in each instance the Fourteenth

Amendment to the United States Constitu-

tion. The Court's opinion acknowledges

that Petitioner in fact did raise federal

questions under each separate motion.

See Appendix A, infra, p. A-3.

ARGUMENT AMPLIFYING REASONS

FOR GRANTING WRIT

Denial of Post-Indictment

Preliminary Hearing

The question presented is

whether or not Oregon's concededly unequal

treatment of "Felony Charged Defendants"

is constitutionally defensible. Pursuant

to the present Oregon constitutional and

-19-

statutory provisions, one group of "Felony

Charged Defendants," before being charg-

able in a trial court, are accorded the

following protections:

(1) The right to counsel - ORS

135.070, 135.075;

(2) The right to cross-examine

and confront witnesses - ORS 135.090;

(3) The right to subpoena wit-

nesses - ORS 135.085;

(4) The right to present evi-

dence - ORS 135.090;

(5) The right to make an unsworn

statement that may be considered at trial

in lieu of the defendant testifying at

trial - ORS 135.100, 135.105;

while another group of "Felony Charged

Defendants" are accorded none of the above.

The law is patently devoid of

standards, and the Oregon Supreme Court

now refuses to require the prosecution to

-20-

demonstrate any rational basis for the

choice adopted.

Additionally, the court conceded

the following:

(1) The procedures afforded in a

preliminary hearing are potentially impor-

tant to an accused because:

(a) They make it possible to

defend against an unjust-

ified charge; See Appen-

adix A at p. A-6

(b) They ensure an accused

has the right to the

judgment of a trained

judicial officer whether

Or not probable cause for

prosecution has been

shown; See Appendix A at

p. A-5

(2) Persons who receive prelimi-

nary hearings gain important advantages

-2l-

over persons prosecuted by grand jury

indictments; Id., at p. A-19

(3) The opportunity of a prelim-

inary hearing is a "privilege" within the

meaning of Oregon's constitutional guaran-

tee, and potentially oue of great impor-

tance. Id, at p. A-17.

(4) The grant or denial of this

"privilege" is controlled wholly and

entirely by the prosecution such that the

accused is powerless to influence the out-

come of this critical determination. Id.

Each of the above-enumerated

rights protect fundamental interests at a

critical stage of the proceedings.

Coleman v. Alabama, 399 U.S. 1, 90 S.Ct.

1999, 26 L.Ed.2d 114 (1970); White v.

Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10

L.Ed.2d 193 (1963); Hamilton v. Alabama,

368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114

(1961).

-22<

Oregon's dual system impinges on

“fundamental interests” protected by the

United States Constitution and thus are to

be subjected to "strict scrutiny" by this

Court. San Antonio School District v.

Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36

L.Ed.2d 16, rev den 411 U.S. 959, 93 S.Ct.

1919, 36 L.Ed.2d 418 (1973); State Board

of Elections v. Socialist Workers' Party,

440 U.S. 173, 99 S.Ct. 983, 59 L.Ed.2d 230

(1979). Therefore, the State of Oregon

must bear the heavy burden to justify this

otherwise unconstitutional scheme.

Recognizing that the prosecution

could not meet its burden, the Oregon

Supreme Court sought to avoid the other-

wise obvious conclusion that such a dual

scheme was unconstitutional, by creating

artificial classes of “indicted” and "non-

indicted" individuals. See Appendix A at

p. A-20. In fact, it is obvious that

-23-

there is but a single class of affected

persons--those being "Felony Charged

Defendants." This class has been recog-

nized historically since early common law

and is specifically designated by Oregon

statute. Further evidence to support

such a finding lies in the Oregon Legis-"

lature's denial of a preliminary hearing

to misdemeanor-charged defendants who are

charged by information without a prelimi-

nary hearing. ORS 131.005 (9) (a).

The fallacy of the Oregon

Supreme Court's two-class analysis is

obvious and apparent. In Miranda v.

Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16

L.Ed.2d 694 (1966), the defendant was

entitled to counsel, not because of his

ethnic background or because he was an

Arizona citizen; he was entitled to coun-

sel because he was charged with felonious

conduct. That is the class he belonged to

. -24-

which entitled him to that protection.

Petitioner belongs to a similar class;

therefore, he is entitled to the same

protections as all other members of that

class.

The Oregon law can no more

deny Petitioner benefits and advantages

of a preliminary hearing than it can deny

to some criminal defendants the right to

counsel and give it to others, or give

some a jury of twelve and others only six,

or give some a unanimous verdict and

others a "ten to two" verdict.

The concept espoused by the

Oregon Supreme Court has been asserted

before. In essence, it relies on a fun-

damental flaw of reasoning, i.e., that

alternative procedures which each meet

minimal due process requirements are

"equal." Thus, they reason, "Felony

Charged Defendants" validly receive

separate but equal treatment.

-25-

In Plessy v. Furgeson, 163 U.S.

537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896),

the doctrine of “separate but equal” was

proffered. In Brown v. Board of Educa-

tion, 347 U.S 483, 74 S.Ct. 686, 98 L.Ed.

873 (1954), this Court struck down as an

unconstitutional denial of equal protec-

tion this concept of substantially equal,

though separate, facilities in education.

Nowhere can there be a clearer

instance of the same discriminatory class-

ification than the present Oregon scheme

for processing "Felony Charged Defendants.”

Having failed to properly iden-

tify the class, “Felony Charged Defen-

dants,”" the Oregon Supreme Court compounds

its misconception by citing holdings of

this Court that sanction different treat-

ment when each procedure, taken indivi-

dually, meets minimal due process require-

ments. The Oregon Supreme Court has

-26-

simply failed to acknowledge that alter-

native procedures cannot, when taken

together, violate the express prohibi-

tions against the denial of equal protec-

tion.

Oregon has three options, any

of which are a remedy sufficient to ensure

that "Felony Charged Defendants" receive

equal protection of the law:

(1) Abolish the Grand Jury Pro-

cess; or

(2) Abolish the Preliminary

Hearing Process; or

(3) Provide to indictees prelim-

inary hearings afforded to persons charged

by way of district attorney's information.

It is Petitioner's contention

that the third proposed remedy can be

implemented without unduly burdening Ore-

gon's criminal justice system. In fact,

such a procedure is now in effect as

-27-

mandated by this Court's decision in

Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct.

2593, 33 L.Ed.2d 484 (1972), holding that

parolees are entitled both to a prelimi-

nary hearing and a formal revocation pro-

ceeding.

It is clear that granting a

post-indictment preliminary hearing is

going to be no more burdensome a remedy;

and given its present widespread use, it

will have only marginal impact on Oregon's

judicial resources.

Inequality of Immunity

Grant Powers

Under Oregon statutes, ORS

136.617, 136.619, the prosecution, not the

defendant, can immunize witnesses; thereby

compelling them to testify in criminal

cases. There can be no question that this

is a powerful prosecutorial tool and one

which has been recognized as strengthening

-28-

the prosecution's hand. Kastigar v.

United States, 406 U.S. 411, 92 S.Ct.

1653, 32 L.Ed.2d 212 (1972).

This Court also has previously

noted that the adversary system of trial

is hardly an end in itself, and:

[There is] ample room...

- - - at least as far as due

process is concerned for [a

rule] which is designed to

enhance the search for truth

in the criminal trial by

insuring both the defendant

and the State ample oppor-

tunity to investigate cer-

tain facts crucial to the

determination of guilt or

innocence. Wardius v. Oregon,

412 U.S. 470, 474, 93 S.Ct.

2208, 37 L.Ed.2d 82 (1973)

citing Williams v. Florida,

399 U.S. 78, 26 L.Ed.2d 446,

90 S.Ct. 1893 (1970).

Wardius, supra, holds that dis-

covery must be a reciprocal process,

unless the prosecution can show signifi-

cant governmental interests which might

support the lack of reciprocity.

-29-

In the instant case, because of

what the Petitioner seeks, neither signi-

ficant nor any governmental interests are

affected.

All Petitioner sought under °

Wardius, supra, and was denied by the

Oregon Supreme Court, was the opportunity

to grant use immunity to witnesses who

would otherwise decline to testify for

fear, themselves, of prosecution. In

Kastigar, supra, this Court held that a

grant of use immunity was sufficient to

compel testimony over a claim of the pri-

vilege against self-incrimination. Given

the Kastigar holding, the Petitioner

neither seeks nor requires an opportunity

to grant the more comprehensive transac-

tional immunity authorized by Oregon

statutes.

Authorizing the Petitioner to

grant use immunity to a witness in no

-30-

way deprives the State of any powers it

may have to prosecute the witness for a

crime about which he testifies. The

State loses nothing and in fact gains the

strategic advantage of examining the wit-

ness under oath.

The Due Process Clause protects

a defendant's right to a full and fair

trial. On more than one occasion, this

Court has closely scrutinized state trial

rules which enable the prosecution to

receive tangible tactical benefits without

having to reciprocate; all at the expense

of a fair trial. See e.g. Washington v.

Texas, 388 U.S. 14, 22, 18 L.Ed.2d 1019,

87 S.Ct. 1920 (1967); Gideon v. Wainwright,

372 U.S. 335, 344, 9 L.Ed.2d 789, 83 S.Ct.

792 (1963). Petitioner seeks no more than

is reasonable and necessary to ensure he

receives a fair trial and that the reme-

dies to the discovery process in Oregon

@3l-

mandated by Wardius, supra, are meaning-

fully implemented.

A separate, though related,

issue exists concerning the manner in

which a prosecutor arrives at a decision

as to who gets immunity and who does not.

In the instant case, no stan-

dards existed by which the prosecution

was legally bound in arriving at its

determination to grant immunity; nor were

there any proceedings involving the juci-

ciary in connection with any of the immu-

nity grants made. (May 31, 1979 Hearing

Tr 35, 43, 44) The Petitioner himself was

never offered immunity (May 3l, 1979

Hearing Tr 54).

It is the lack of any articula-

ted standards which the Petitioner con-

tends has denied him equal protection of

the laws. Under the requirements formula-

ted by the Oregon Supreme Court's opinion,

-32-

an unnecessary ind unjustified burden has

now been placed upon Petitioner. See

Appendix A at p. A-24. He must now demon-

strate "a discriminatory practice, or [an]

illegitimate motive," Id., in order to

Sustain an equal protection claim. Meet-

ing this burden is nearly impossible

since no standards exist identifying what

these “illegitimate” or "discriminatory"

practices might consist of; and all evi-

dence which could support such a claim

rests with the prosecution and, is in

reality, unavailable to the Petitioner.

CONCLUSION

For the foregoing reasons, Peti-

tioner prays that a Writ of Certiorari

issue to review the judgment rendered by

the Oregon Supreme Court.

Respectfully submitted,

ROBERT J. McCREA

Counsel for Petitioner

ale

APPENDIX A

Table of Contents

Order Denying Petition for Rehearing

Opinion of the Oregon Supreme Court

Opinion of the Oregon Court of Appeals

Orders of the Trial Court Denying

Motions to Dismiss the Indictment

A-1

SUPREME COURT

ADMINISTRATIVE OFFICE

SUPREME COURT BLDG.

SALEM, OREGON 97310

July 28, 1981

Robert J. McCrea

Attorney at Law

1147 High Street

Eugene, Oregon 97401

Re: State v. Andrew Clark

CA 15862 SC 27251

Dear Mr. McCrua:

The Supreme Court today denied peti-

tioner's Petition for Rehearing in the

above-entitled matter.

This letter constitutes the order of

the Supreme Court denying the petition.

Very truly yours,

/s/ Marilyn Hartley

Supreme Court

Calendar Clerk

MH/np

cc: John C. Bradley

A-2

No. 71 June 23, 1981 231

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent,

Vv.

ANDREW CLARK,

Petitioner.

(TC 35188, CA 15862, SC 27251)

On Review from the Court of Appeals.*

Argued and submitted December 3, 1980.

Robert J. McCrea, of Morrow, McCrea &

Divita, P.C., Eugene, argued the cause and

filed a brief for petitioner.

John C. Bradley, Assistant Attorney Gen-

eral, Salem, argued the cause for respon-

dent. With him on the brief were James M.

Brown, Attorney General, and Walter L.

Barrie, Solicitor General.

Before Denecke, Chief Justice, and

Tongue, Lent, Linde, Peterson and Campbell,

Justices.

LINDE, J.

Affirmed.

*Appeal from Circuit Court, Benton County.

Frank D. Knight, Judge. 47 Or App 389, 615 P2d

1043 (1980).

LINDE, J.

Defendant was convicted of theft

in the second degree. On appeal, he

assigned as error the trial court's denial

of two pretrial motions to dismiss the

indictment on constitutional grounds. One

of these motions claimed that defendant

was denied equal protection of the law

because he was prosecuted and potential

codefendants were given immunity without

reference to any standards for the dispa-

rate treatment, and because he could not

obtain the testimony of witnesses by

granting them immunity from the use of

their testimony against themselves, as the

state may do or assist other defendants to

do. The second motion to dismiss the

indictment claimed that the failure to

accord defendant a preliminary hearing

after his indictment denied him due pro-

cess and equal protection of the law under

a number of state and federal constitu-

tional provisions.1 The Court of Appeals

rejected these constitutional claims, 47

Or App 389, 615 P2d 1043 (1980), and we

allowed review. We affirm the conviction.

1 Defendant relies primarily on Or Const Art I,

§ 20, and on the provisions of U S Const amend 14,

§ 1, that "[nJo state shall ... deprive any person

of life, liberty, or property, without due

of law; nor deny to any person within its juris-

diction the equal protection of the laws." The

singular "law" is used in defendant's equal pro-

tection argument, which refers collectively both

to the state and the federal provision. Defendant

cited Or Const art I, §§ 10 and 11, and the fed-

eral sixth amendment as “fundamental” rights which

were not made “equally” available to him. He did

A-4

I. Denial of a preliminary hearing.

Oregon law provides for charging

a person with a felony either by grand

jury indictment or by a district attor-

ney's information. Article VII (amended),

section 5, of the Oregon Constitution per-

mits a district attorney to charge a per-

son on an information filed in circuit

court only after a showing of probable

cause in a preliminary hearing before a

magistrate, unless the person waives

indigtment or waives the preliminary hear-

ing. At the preliminary hearing a panoply

of procedural guarantees protect the per-

son's right to contest the evidence of pro-

bable cause that he has committed a felony

and his right not to become a witness

against himself.3 These include the right

~ (Cont.) not explain his citation of Or Const art

I, §§ 15 and 16. Cf Sterling v. Cupp, 290 Or 611,

625 P2d 123 (1981), note 1 and cases there cited,

Megdal v. Board of Dental Examiners, 288 Or 293,

296, 605 P2d 273 (1980).

The dissent asserts that defendant abandoned his

reliance on Or Const art I, § 20, on appeal, though

it was a basis of his motion in the trial court.

Defendant's principal argument, however, was pre-

dicted on Hawkins v. Superior Court, 22 Cal3d 584,

586 P2d 916 (1978), a decision based entirely on

State rather than federal grounds. In any event,

he could not have excluded issues of state law by

pitching his attack on 14th amendment grounds.

Cf. State v. Spada, 286 Or 305 (1979). ‘The case

was argued together with State v. idmonson, also

decided today, which presented the same issue of

equal rights, based in part on art I, § 20, and

there can be no claim that examination of that

issue under the Oregon Constitution before the 14th

amendment took respondent by surprise.

A-5

to the aid of counsel, ORS 135.070,

135.075; the right to subpoena witnesses,

ORS 135,085; cross-examination of adverse

witnesses, ORS 135.090; the right to make

an unsworn statement subject only to limi-

ted questioning by the magistrate, ORS

135.095, 135.100; and ultimately, the

right to the judgment of a trained judi-

cial officer whether probable cause for

the prosecution has been shown, based on

evidence which the person to be charged

could challenge or meet by opposing evi-

dence or by his own statement, if he

chose to do so. ORS 135.175, 135.185.

No comparable procedural rights

are accorded a person charged before a

grand jury. ‘To the contrary, the statutes

“ Or Const art VII (amended) § 5:

"(4) The district attorney may charge a per-

son on an information filed in circuit court of

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 per-

son on an information filed in circuit court if,

after a preliminary hearing before a magistrate,

the person has been held to answer upon a show-

ing 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."

3 These procedures are spelled out in statutes;

the constitution itself does not define "prelimi-

nary hearing.” ORS 135.070 - 135.185. The stat-

utes use the male pronoun collectively for either

gender.

A-6

provide that only the prosecutor and a

witness actually under examination shall

be present during grand jury sittings,

unless a court orders the presence of a

reporter of testimony or other necessary

attendants, ORS 132.090; the grand jury

need not hear any evidence for the defen-

dant, ORS 132.320(4); and it may find an

indictment upon the apparent strength of

prosecution evidence "if unexplained or

uncontradicted" although the defendant had

no opportunity to test, explain, or con-

tradict the evidence. ORS 132.390.

Unquestionably the procedures

afforded in a preliminary hearing are

potentially important to an accused,

whether or not they are advantageous in a

particular instance. In theory, at least,

the preliminary hearing is designed to

make it possible for an accused to avoid

defending against an unjustified charge,

even if more often it only permits him to

learn something of the prosecution's case

against him that would be hidden in grand

jury secrecy. Cf. ORS 135.855(1) (c);

State ex rel Johnson v. Roth, 276 Or 883,

557 P2d 230 (1976); compare State v. Hart-

field, 290 Or 583 624 P2d 588 (1981). In

his original motion, defendant included a

reference to “due process," presumably

intending to invoke that clause of the

federal fourteenth amendment.4 Grand jury

4 Supra, n. 1. As a constitutional premise, the

phrase “due process" must refer to this federal

clause and must be supported by interpretation of

the clause in decisions of the United States

Supreme Court or of other courts based on such

decisions, since the phrase does not appear in the

Oregon Constitution. See Megdal v. Board of Dental

A-7

indictment itself can hardly be argued to

contravene due process, being included in

the same fifth amendment by which “due

process" entered constitutional law, and

defendant offers no support or serious

argument for the proposition that the

evolution of due process now requires an

opportunity to contest the factual basis

of an indictment in a pretrial judicial

hearing. Defendant's chief claim, how-

ever, is not that an opportunity to dis-

cover the prosecution's case or to con-

test it before trial is constitutionally

mandated, but rather that a law which

does provide such an opportunity must be

applied according to constitutional stan-

dards, including the constitutional stan-

dards of equality. That much, of course,

is true.> We therefore turn to those

constitutional standards.

Article I, section 20. Defendant

does not spell out the distinct premises

(Cont.) Examiners, supra, n. 1. It will avoid

needless confusion if “due process" is not used

to refer generically to whatever procedures may

be required by other sources or state or federal

law. No such other sources are quoted or argued

in this case.

5 The fact that a procedure, a power, or a pro-

gram is itself stated in the constitution, as are

the provisions for indictment and information,

does not relieve them from compliance with other

constitutional standards unless these are expressly

excluded. There are many such provisions placed in

the Oregon Constitution (e.g. sale of alcoholic

liquor, art I, § 39, educational funding, art VIII,

A-8

of his “equal protection" attack, relying

only on the decision of the Supreme Court

of California in Hawkins v. Superior Court,

22 Cal3d 584, 586 P2d 916 (1978). The

Hawkins decision held that indicted defen-

dents must be afforded preliminary hearings

equally with defendants charged by an

information in order to meet the equality

guarantee of California's constitution. ®

Before turning to the Hawkins court's

analysis, therefore, it is necessary to

review the comparable Oregon guarantee.

Article I, section 20 provides:

"No law shall be passed granting to any

citizen or class of citizens privileges, or

immunities, which, upon the same terms,

shall not equally belong to all citizens."

(Cont.) §§ 2-5, and the bonding authorities of

article XI-A through H) that are not thereby

placed beyond the guarantees in article I, the

Bill of Rights.

6 California Const art I, § 7.

“(a) A person may not be deprived of life,

"(b) A citizen or class of citizens may not

be granted privileges or immmities not granted

on the same terms to all citizens. Privileges

before the fourteenth amendment. See Sterling v.

Cupp, 290 Or 611, 613-614 and notes 1, 2, 625 P2d

123 (1981).

A-9

This guarantee, taken like most of article

I from Indiana's constitution of 1851, has

been a part of the Bill of Rights since

Oregon became a state in 1859. Antedating

the Civil War and the equal protection

clause of the fourteenth amendment, its

language reflects early egalitarian objec-

tions to favoritism and special privileges

for a few rather than the concern of the

Reconstruction Congress about discrimina-

tion against disfavored individuals or

groups.’ See City of Klamath Falls v.

Winters, 289 Or 757, 618 P2d 418 (1980),

quoting State ex rel Reed v. Schwab, 287

Or 411, 417, 600 P2d 387 (1979).8 The

original concern of article I, section 20,

with special privileges or “monopolies”

was the basis of early decisions concern-

ing the licensing of sailors' boarding

houses, White v. Holman, 44 Or 180, 74 P

933 (1904), or fishing rights, e.g. Monroe

v. Withycombe, 84 Or 328, 165 P 227 (1917).

7 Ind Const art I, § 23 (1851). Its direct pre-

decessors were Iowa Const art I, § 6 (1846), Mich

Const art I, § 3 (1835), Tenn Const art XI, § 9

(1834). The original state declarations of rights

had proscribed, more narrowly, “exclusive or sepa-

rate emoluments or privileges fram the conmunity,

but in consideration of public services," Va Decl

of Rights § 4 (1776) (similarly Mass Decl of

Rights § VI (1780)), repeated in many state con-

stitutions. Compare, as to the equal protection

of "Equal Protection of the Laws," 1972 Wash UL Q

421 (1972).

8 the quotation, taken from State v. Savage, 96

Or 53, 59, 184 P 567 (1919), 189 P 427 (1920),

reads:

A-10

Because the clause would ordinarily be

invoked by persons who wanted a privilege

or immunity for themselves rather than to

withdraw it from others, its protective

effect was soon held to extend to rights

against adverse discrimination as well as

against favoritism. See,e.g., State v.

Wright, 53 or 344, 100 P 296 (1909)

(reversing a conviction for unlicensed

peddling because peddlers of other goods

did not require licenses), and its use

against discriminatory or otherwise

"unequal" adverse treatment is long

established. See City of Klamath Falls v.

Winters, supra, and cases cited at 289 Or

775-777.

More important to the present case

is the dual test of the proscribed kinds

of discrimination or unequal treatment.

The clause forbids inequality of privi-

leges or immunities not available "upon

the same terms," first, to any citizen,

and second, to any class of citizens. In

(Cont.) “The provisions of the state Connstitu-

tion [sic] are the antithesis of the fourteenth

amendment in that they prevent the enlargement

of the rights of some in discrimination against

the rights of others, while the fourteenth

amendment prevents the curtailment of rights

289 Or at 774-775. Theoretically the converse

perspectives of the two clauses could bear on

whether a forbidden differentiation should be

resolved by depriving the favored class of its

unequal benefits under article I, section 20, or

by extending the benefits to those who were

“denied equal protection," but such a choice is

not involved in this case.

A-11l

other words, it may be invoked by an indi-

vidual who demands equality of treatment

with other individuals as well as by one

who demands equal privileges or immunities

for a class to which he or she belongs.

Because constitutional attacks under arti-

cle I, section 20 mostly have been direc-

ted at laws prescribing general rules for

one or another class of subjects, these

attacks, as well as most judicial opin-

ions, have been phrased in the rhetoric of

forbidden "classification," but that is

only one of two distinct grounds of attack.

A classic example of the other, individual,

basis is Altschul v. State, 72 Or 591, 144

P 124 (1914), which invalidated a law per-

mitting a named person to sue the state.

This dual coverage of article I,

section 20, was recognized in the first

case under the section, In re Oberg, 21 Or

406, 28 P 130 (1891). A constable convic-

ted of arresting a sailor on board a vessel

as an absconding debtor, contrary to a law

prohibiting such arrests, claimed that the

law was unconstitutional as a special

immunity for seamen. In rejecting his

claim, this court said:

“All sailors of a seagoing vessel within the

prescribed limits are treated alike, and

entitled to enjoy the privileges or immuni-

ties granted. The act prescribes the same

rule of exemption to all persons placed in

the same circumstances. It does not grant

to a sailor immmity from arrest for debt,

and refuse it to his neighbor, if they be

similarly situated. The same privilege or

immunity is extended by the act to all in

the same situation. Any person who is a

sailor may enjoy the immunity, and any

A-12

citizen desiring such immunity may have

it in the words of the constitution,

‘upon the same terms,’ by becoming a

sailor. While one may enjoy the bene-

fit of the exemption, and another may

not, this results not because the stat-

ute favors one, and discriminates

against another, but because one brings

himself within its terms, and the other

does not."

21 Or at 408. The court quoted the Iowa

court, stating of a comparable statute in

McCormick v. Rusch, 15 Iowa 127, 129

(1863):

"It does not prescribe one rule for one

citizen or soldier, and another for his

neighbor, if they be in the same situa-

tion. We have a statute regulating con-

tinuances on account of the absence of

witnesses, which gives a uniform rule

to all litigants. And yet one may be

entitled to a continuance and another

not. This results, not because a dif-

ferent rule is prescribed for each, but

because one brings himself within its

terms and the other does not... .”

Id. And the Oberg court continued with

quotationg to the same effect from

Tennessee” and the following from the

United States Supreme Court:

9 "[(Tjhis clause of the constitution only pro-

hibits the suspension of a general law or the

grant of privileges, immmities or exemptions to

an individual or individuals. It does not pro-

hibit legislation for the benefit of classes com

posed of any members of the community who may

bring themselves within the class."

A-13

"The discriminations which are open to objec-

tion are those where persons engaged in the

same business are subject to different

restrictions, or are held entitled to dif-

ferent privileges under the same conditions.

It is only then that the discrimination can

be said to impair that equal right which all

can claim in the enforcement of the laws.

(Soon Hing v. Crowley, 113 U. S. 709.)"

21 Or at 411.

It has thus been clear from the

earliest judicial discussion of article I,

section 20, that this section is a guaran-

tee against unjustified denial of equal

privileges or immunities to individual

citizens at least as much as against

unjustified differentiation among classes

of citizens. It also was early estab-

lished that the guarantee reaches for-

bidden inequality in the administration of

laws under delegated authority as well as

in legislative enactments. White v.

Holman, supra, held that a board of com-

missioners had violated article I, section

20, in denying petitioners a license to

maintain a sailors’ boarding house because

the board had not used objective standards

for selecting qualified licensees but

rather had followed the recommendations of

shipowners that the business be limited to

another firm's boarding house. Similarly,

in Monroe v. Withycombe, supra, this court

said that if the legislature could not

itself directly authorize exclusive fish-

ing rights for some persons, it could not

authorize a master fish warden to do so

indirectly. 84 Or at 336. And in State v.

Cory, 204 Or 235, 282 P2d 1054 (1955), the

A-14

court recognized a violation of article I,

section 20 as well as the fourteenth

amendment in the wholly standardless

administration, with "no yardstick or

semblance of classification," of discre-

tion given district attorneys under a

habitual criminal act. 204 Cr at 240.

One branch of article I, section

20, and decisions under it thus call for

analysis whether the government has made

or applied a law so as to grant or deny

privileges or immunities to an individual

person without legitimate reasons related

to that person's individual situation.

More frequent cases have involved attacks

on statutes under the branch of the guar-

antee that forbids laws granting or deny-

ing a privilege or immunity to a class of

citizens. The two are sometimes interre-

lated, for when wholly standardless appli-

cation of a general law to individual

cases is avoided by formal or informal

criteria, these criteria in turn must pass

muster under "classification" analysis.10

That mode of analysis has notori-

ous difficulties, which this court has not

escaped. As Hawkins v. Superior Court,

supra, on which defendant relies, used

this approach, we deal with it here.

Without reviewing the course of this

10 In such cases, however, the constitutional

issue normally would be avoided by interpreting

the law in a manner consistent with the consti-

tutional guarantee. See State v. Smyth, 286 Or

293, 296, 593 P2d 1166 (1979); Oregon Medical

Association v. Rawls, 281 Or 293, 300, 574 P2d

1103 (1978), and cases there cited.

A-15

court's decisions, a few fundamental

points suffice for the purposes of the

present case.

The terms "class" and "classifi-

cation" are invoked sometimes to mean

whatever distinction is created by the

challenged law itself and sometimes to

refer to a law's disparate treatment of

persons or groups by virtue of character-

istics which they have apart from the law

in question. Familiar examples of the

latter kind of "class" are personal char-

acteristics such as sex, ethnic background,

legitimacy, past or present residency or

military service. On the other hand,

every law itself can be said to "classify"

what it covers from what it excludes. For

instance, the rule of this court that lim-

its the time for filing a petition for

review (Rule 10.05) "classifies" persons

by offering the “privilege” of review to

those who file within 30 days and denying

it to those who file later. Similarly, a

law that licenses opticians and optome-

trists to perform different functions, see

Williamson v. Lee Optical, 348 US 483, 75

iit “Words like . . . ‘equal’ in any consti-

tutional formula, expressing a principle that

like shall be treated alike, cannot rise

beyond tautology without deciding what is

alike for constitutional purposes, i.e., what

are distinctions without a constitutionally

permissible difference or what known forms of

inequality the particular clause was meant to

Tharalson v. State Dept. of Rev., 281 Or 9, 15 n.

10, 573 P2d 298 (1978).

A-16

S Ct 461, 99 L Ed 2d 563 (1955), does not

grant or deny privileges to classes of

persons whose characteristics are those

of “opticians” and “optometrists"; rather,

the law creates these classes by the

licensing scheme itself. Attacks on such

laws as "class legislation" therefore tend

to be circular and, as the above quota-

tions from early decisions show, have gen-

erally been rejected whenever the law

leaves it open to anyone to bring himself

or herself within the favored class on

equal terms. See also Jarvill v. City of

Eugene, 289 Or 157, 184-185, 613 P2d l

(1980) (sustaining limitations on privi-

lege to use public parking facilities).

For like reasons, different treat-

ment of comparable facts at different geo-

graphic locations within the state is not

necessarily a denial of equal privileges

or immunities under article I, section 20.

It may or may not be. The answer depends

in part on the level of government that

makes the law. When local governments

make and administer their own policies,

obviously these policies legitimately may

produce different privileges or immunities

from those available elsewhere, as long as

the guarantees of article I, section 20,

are observed within the reach of the local

law. The same may be true when state

legislation leaves the choice among poli-

cies to local agencies. See City of

Klamath Falls v. Winters, supra (choice

between two channels of prosecution and

appeal); Olsen v. State ex rel Johnson,

276 Or 9, 554 P2d 139 (1976) (level of

school taxes and expenditures). On the

other hand, when the state makes and

administers its own laws, geographic

A-17

distinctions are tested by the usual cri-

teria of equal privileges and immunities

or equal protection. See, e.g. Bock v.

Bend School Dist. No. 1, 252 Or 53, 448

P2d 521 (1968) (sustaining teacher tenure

law limited to large school districts);

State v. Kincaid, 133 Or 95, 285 P 1105

(1930) (sustaining conviction under a

license law that did not apply in populous

cities); State ex rel Bell v. Frazier, 36

Or 178, 59 P 5 (1899) (sustaining special

fees for court officials and sheriffs in

populous county).

Application to this case. The

foregoing summary of the several distinct

issues that can arise under article I,

section 20, serves to isolate the issue

that is presented by defendant's reliance

on Hawkins v. Superior Court, supra.

There is no question that the

opportunity of a preliminary hearing is a

"privilege" within the meaning of the con-

stitutional guarantee, and potentially one

of great practical importance. The grant

or denial of this privilege is controlled

by the state's choice, acting through the

district attorney, to proceed by indict-

ment or by information. Defendant's

attack, under Hawkins, is on the "classi-

fication" between persons who are charged

by information and accorded a preliminary

hearing and persons who are indicted and

denied such a hearing. He does not assert

that he was singled out for discriminatory

treatment either as an individual or as a

member of a disfavored minority,1!2 or that

in practice the privileges of state law do

not “upon the same terms . . . equally

belong to all citizens" throughout the

state, instead giving the privilege to one

A-18

citizen and refusing it to his “neighbor

- « « in the same situation," In re Oberg,

supra, without the use by prosecutors of

any “yardstick or semblance of classifica-

tion which would enable the district attor-

ney to determine under what circumstances

an information should be filed," State v.

Cory, supra, 204 Or at 240. Rather, the

Hawkins attack is directed simply at the

coexistence of the two alternative proce-

dures by which to initiate a criminal

prosecution, one of which includes a pre-

liminary hearing and the other of which

does not.

In City of Klamath Falls v.

Winters, supra, this court also dealt with

the existence of two separate procedures

available to prosecute the same offense

either in a municipal court, with a new

trial in circuit court but no further

appeal, or in a district court with an

appeal to the Court of Appeals. There the

court found it "difficult to state categor-

ically which system offers greater advanta-

ges to defendants." 289 Or at 761. In

the present case, we agree with the

California court in Hawkins that the

12 the court rejected such a claim asserted

under the federal equal protection clause in

Bailleaux v. Gladden, 230 Or 606, 370 P2d 722

(1962), following State v. Hicks, 213 Or 619,

325 P2d 794 (1958), apparently distinguishing

Yick Wo v. Hopkins, 118 US 356, 6 S Ct 1064, 30

L Ed 220 (1885), by the fact that Hicks and

Bailleaux claimed to have been discriminated

against because they were not members of a

minority race. It is doubtful that those

opinions could survive modern equal protection

analysis, let alone article I, section 20.

A-19

opportunity of a preliminary hearing, with

the procedural rights described above,

offers important advantages over prosecu-

tion upon an indictment without a prelimi-

nary hearing.

We do not follow the Hawkins court

to the conclusion, however, that this dif-

ference between two available procedures

necessarily represents a denial of equal

protection of the laws, regardless of show-

ing which defendants receive one or the

other procedure. Hawkins reached this con-

clusion in "classification" terms, by

defining as two classes those who are

indicted and those who are charged by

information. But we think this is an

example of the "circular" use of the con-

cept of "class" mentioned above. The dis-

tinction to be tested is the use or nonuse

of preliminary hearings. The "classes"

said to fail the test of equal protection

are the "class" of those defendants who

receive preliminary hearings (because

charged by information) and the "class" of

those who do not (because indicted). But

these defendants do not exist as categor-

ies or as classes with distinguishing

characteristics before and apart from a

prosecutor's decision how to charge one,

or some, or all defendants. Aside from

the manner in which the decision is made,

see City of Klamath Falls, supra, 289 Or

at 784-785 (Lent, J, dissenting), defen-

dants charged under either procedure are

"classes" only as an effect of the dual

procedural scheme itself. As in City of

Klamath Fallas [sic], supra, “these

defendants [i.e. those who do not receive

a preliminary hearing] are not denied such

a ‘privilege’ as individual persons, but

A-20

only because they are members of a ‘class’

of persons who are prosecuted [by indict-

ment] as distinct from persons prosecuted

{on an information]." 289 Or at 776.

Each of the two procedures, how-

ever, is expressly authorized by the con-

stitution itself. Properly administered,

each satisfies the fourteenth amendment.

Hurtado v. California, 110 US 516, 28 L Ed

232 (1884); cf. Beck v. Washington, 369 US

541, 82 S Ct 955, 8 L Ed 2d 98 (1962);

Cassell v. Texas, 339 US 282, 70 S Ct 629,

94 L Ed 839 (1950). As stated above, the

administration of laws and procedures pro-

vided in the constitution nonetheless must

meet other constitutional standards, but

the mere coexistence of the two procedures

so as to limit preliminary hearings to one

of them does not constitute forbidden class

legislation. Without a showing that the

administration of Or Const art VII, § 5 and

ORS 135.070--135.185 in fact denied defen-

dant individually, or a class to which he

belongs, the equal privilege of a prelimi-

nary hearing with other citizens of the

state similarly situated, the circuit court

did not err in denying the motion to dis-

miss the indictment.

Fourteenth amendment equal protec-

tion. This court often has stated that for

most purposes analysis under article I,

section 20 and under the federal equal pro-

tection clause will coincide, see, e.g.,

School Dist. No. 12 v. Wasco County, 270

Or 622, 529 P2d 386 (1975); State v.

Savage, 96 Or 53, 184 P 567 (1919),

although of course a law found to be

invalid under article I, section 20 would

not also be tested under the federal con-

stitution. In this case, as in Jarvill v.

A-21

City of Eugene, supra, we conclude that

the same reasons why the challenged

scheme does not on its face violate arti-

cle I, section 20, also suffice for it to

survive similar scrutiny under the four-

teenth amendment. 289 Or at 184, 185.

Defendant has cited no decision of the

United States Supreme Court to compel a

contrary conclusion, and Hawkins, as

stated above, was decided under the Cali-

fornia constitution.

II. Denial of immmity.

Defendant also moved to dismiss

the indictment on the grounds, first, that

the state's decision to prosecute defen-

dant and grant immunity to potential code-

fendants were made “without benefit of or

reference to any written or otherwise

articulated standards and guidelines" and

without judicial scrutiny, and second,

that the state thereby was able to obtain

the testimony of witnesses who would not

testify without immunity while denying

defendant similar access to testimony, in

both respects denying him equal protection

of the law.

The facts are that defendant was

one of four students at Oregon State Uni-

versity implicated in the theft of chairs

from a university basement. Two of the

students were granted full immunity from

prosecution and became prosecution witnes-

ses against defendant. The circuit court

denied defendant's motion, citing State v.

Grabill, 34 Or App 639, 579 P2d 316 (1978),

in which the Court of Appeals held that

Wardius v. Oregon, 412 US 470, 93 S Ct

2208, 37 L Ed 2d 82 (1978), did not

A-22

require giving a defendant equal power

with the state to immunize a witness from

prosecution.

Defendant criticizes Grabill,

arguing that the issue is not equal power

to immunize a witness from prosecution

but only the Limited opportunity to compel

a reluctant witness to testify by assuring

the witness that his testimony cannot later

be used against himself. The distinction

may be well taken. Nevertheless, it does

not help defendant's attack on the trial

court's denial of his motion. As stated

above, the motion claimed a denial of

equal protections. Wardius was a decision

under the fourteenth amendment's due pro-

cess clause. Article I, section 20,

speaks of equal privileges or immunities

between citizens, not between a citizen

and the government, and defendant points

to no contrary interpretation of the equal

protection clause.

The Court of Appeals rejected

defendant's attack on the grant of immun-

ity to the other potential defendants by

stating that "[t]he district attorney, as

the prosecutor, answers to the electorate

for the conduct of his office" and that

the exercise of his discretion is "not

subject to judicial supervision." 47 Or

13 Moreover, defendant did not call a witness

who refused to testify without immunity against

later use of his testimony, nor did he otherwise

show that such testimony would have been avail-

able to him. Under the circumstances, it is not

apparent how the issue could be raised on a

dismiss the indictment.

A-23

App at 391-392. That reason overstates

the point. State and local officials,

school board members, sheriffs, even

judges answer to the electorate for the

conduct of their offices and are nonethe-

less held to constitutional limits in the

exercise of the discretion entrusted to

them. District attorneys are state offi;

cers applying statewide, not local law. 4

Their discretionary decisions, even if not

subject to judicial “supervision,” are not

immune from judicial scrutiny. See, e.g.,

State v. Jones, 279 Or 55, 566 P2d 867

(1977); In re Roger Rook, 276 Or 695, 556

P2d 1351 (1976); State v. Langley, 214 Or

445, 315 P2d 560, 323 P2d 301 (1958). As

stated in Dickinson v. Davis, 277 Or 665,

673, 561 P2da 1019 (1977), about penalties

under the motor carrier laws,

"discretion is not a magic word. It is only

a range of responsible choice in pursuing

one or several objectives more or less

broadly indicated by the legislature (or, in

Oregon, sometimes by the people themselves)

under various circumstances pertinent to

those objectives. This applies to a discre-

tionary choice of sanctions just as to other

delegated authority."

44 Or Const art VII (orig), § 17 provided:

"There shall be elected by districts com-

prised of one, or more counties, a sufficient

number of prosecuting Attorneys, who shall be

the law officers of the State, and of the

counties within their respective districts,

and shall perform such duties pertaining to

the administration of Law, and general police

as the Legislative Assembly may direct."