Petition — Gortmaker v. Oregon

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Office - Supreme Court US

FILED

837-1125 DEC 12 1983

ALEXANDER L sTevas.

No. ne =

IN THE SUPREME COURT

OF THE UNITED STATES

October Term, 1983

GARY D. GORTMAKER,

Petitioner,

THE STATE OF OREGON,

Respondent.

Petition for Writ of Certiorari

to the Oregon Supreme Court

PAUL J. De MUNIZ

Garrett, Seideman, Hemann,

Robertson & De Muniz, P.C.

Attomeys at Law

101. Commercial Street, N.E.

210 Willamette Professional Center

P.O. Box 749

Salem, Oregon 97308

Telephone: (503) 581-1501

Counsel for Petitioner

QUESTIONS PRESENTED

Ll. Whether an accused is guaranteed, by

minimum federal constitutional standards, a procedure

to insure fair and random selection of jurors for a

grand jury.

2. Whether a court of last resort in a state

violates the supremacy clause of the United States

Constitution when it renders a decision on the basis of

state constitutional standards that effectively defeats

due process provision of the United States

Constitution.

TABLE OF CONTENTS

Page

Brief

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DUPTIGNGTIGR ccc cc ccc cece cccesccccccecs 2

Camstitutional Provisions Involved ........eee66. 3

SE EE OED once ccccccccccccccecs 4

Reasons for Allowance of Writ .........eee8. 10

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TABLE OF AUTHORITIES

Cases Cited

Henry v. Mississippi, 379 US 443, 85

SCt 564, 13 LEd2d 408 (1965) ........

International Harvester Company v.

Missouri, 243 US 199, 34 SCt 859,

58 LEd2d 1276 (1914) ......2eeeeees

Peters v. Kiff, 407 US 493, 5M, 92 SCt

2163, 33 LEd2d 83 (1972) .......006.

Reynolds v. Simms, 377 US 533, 84 SCt 1042,

12 LEd2d 506 (1964). ...... eee eeees

State v. Gortmaker, 60 Or App 723, 655

P2d 725-6, 655 P2d 575 (1983) .......

United States v. Wells, 163 F. 313, 324

(D.C. Idaho 1908) ......e eee eeeees

A Constitutional Provisions

Oregon Constitution,

Article VI (Amended) § 5(2) ........

United States Constitution,

BIGREMGER VE ccccecececeeeseees

United States Constitution,

BERRROGE BET coc cc ecb oct eeseee

United States Constitution,

BOGGS VE 000006 0beseseneeesnee

iii

Page

TABLE OF AUTHORITIES — continued

Other Authorities

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Petitioner Gary Gortmaker, respectfully prays

that this Court enter a Writ of Certiorari to review

the judgment and opinion of the Supreme Court of the

State of Oregon in State of Oregon v. Gary D.

Gortmaker, No. SC 29266 (August 16, 1983).

OPINIONS BELOW

The opinion of the Supreme Court of the State

of Oregon is reported as State v. Gortmaker, 295 Or

505, == P2d__ (1983). In its opinion and ensuing

judgment, the Supreme Court affirmed the State Court

of Appeals’ decision of the same case at 60 Or App

723, 655 P2d 575 (1982) which affirmed the trial court's

denial of petitioner's motion to quash the indictment.

The opinion of the Oregon Supreme Court is attached

to this Petition as Appendix A. The opinion of the

Oregon Court of Appeals is reported at 60 Or App 723,

655 P2d 575.

JURISDICTION

The opinion of the Oregon Supreme Court was

dated and filed on August 16, 1983. A Petition for

Rehearing before the Oregon Supreme Court was filed

by the petitioner in a timely manner and was denied by

order on September 20, 1983. Pursuant to Oregon law,

that judgment was stayed until twenty-one (21) days

thereafter, i.e., until October ll, 1983. October ll, 1983

is the date that the Oregon Supreme Court's judgment

in this matter is deemed to have been entered. The

motion by the state to recall and reissue the decision

and judgment is attached as Appendix B. The order by

the Oregon Supreme Court designating October Ll, 1983

as the date in which its judgment was entered, is

attached as Appendix C.

Jurisdiction to review the Oregon Supreme

Court judgment in this criminal case by writ of

certiorari is conferred upon this Court by 28 U.S.C. §

1257(3). This petition for a writ of certiorari is filed

within the 60-day period prescribed by 28 U.S.C. §

2101(d), as computed in accordance with Rule 20 and

Rule 29(1) of the Rules of the Supreme Court of the

United States.

CONSTIT UTIONAL PROVBIONS INVOLVED

The resolution of the issues presented in this

petition involves the Sixth and Fourteenth

Amendments of the United States Constitution and

Article VI of the United States Constitution.

United States Constitution, Amendment VI

provides in pertinent part:

"In all criminal prosecutions, the accused

shall enjoy the right to a trial, by an

impartial jury of the state, wherein the

crime shall have been committed."

United States Constitution, Amendment XIV

provides in pertinent part:

"Section L All persons bom ofr

naturalized in the United States, and

subject to the jurisdiction thereof, are

citizens of the United States and of the

State where they reside. No State shall

make or enforce any law which shall

abridge the privileges or immunities of

citizens of the United States; nor shall

any State 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."

Article VI, United States Constitution, provides

in pertinent part:

"This constitution, and the laws of the

United States which shall be made in

pursuance thereof; and all treaties made,

ar which shall be made, under the

authority of the United States, shall be

the supreme law of the land; and the

judge's in every state shall be bound

thereby, anything in the constitution or

laws of any state to the contrary

notwithstanding.”

STATEMENT OF THE CASE

L Summary of Facts

Petitioner was the Marion County District

Attorney from 1965 until the time of the triaL On May

27, 1980, a special grand jury was impaneled in the

county to investigate allegations of criminal conduct

by petitioner; it subsequently returned the indictments

on which he was tried. The principal issue on appeal

concerned the method of selecting the special grand

jury, which was as follows: In January 1980, the

Marion County Court Administrator summoned 250

persons to serve on the jury panel for both the district

and circuit courts for Marion County. Of the 250

persons summoned, between 70 and 95 actually

reparted. Some did not respond to their summons, and

others were excused from duty, either by a circuit or

district judge or by court administrative staff without

consulting with a judge.

The regular term of jury duty in Marion County

is two months, but the term of this jury panel, which

was selected in January, was extended through June by

order of the Court, because of the county's financial

difficulties. During this extended term, some of the

original 70-95 jurors were excused entirely after

having served for more than four weeks. Others were

temporarily excused, either by a judge or a member of

the court's staff, for reasons of personal convenience,

such as vacation plans. In addition, staff members

were apparently unable to contact some of the original

jurors to inform them that their term had been

extended, and, therefore, they were excused.

On May 21, 1980, the court administrator drew

by lot the names of ten jurors for the special grand

jury that was to investigate petitioner from all the

jurors then remaining for jury duty and not known to

be unavailable for duty commencing May 27. Of these

ten jurors, five either could not be reached by the

court staff or indicated to the staff that they wouldbe

unavailable for duty om May 27. The court

administrator accepted the statements of the

prospective jurors who indicated that they would be

unavailable, without conferring with a judge as to

whether they should be excused from service.

On May 22, the court administrator drew the

names of four more jurors from all the remaining

jurors not known to be unavailable. On May 27, some

of the jurors selected on May 2] and 22 did not report

for duty. In order to complete the special grand jury,

a court secretary selected 17 jurors for a sub-pool,

from which two additional jurors were drawn by lot.

The 17 were chosen, according to the secretary,

because they had regularly attended during the three

months that they had already served.

The petitioner essentially restates and hereby

adopts the summary of facts as stated by the Oregon

Court of Appeals. State v. Gortmaker, 60 Or App 723,

655 P2d 725-6, 655 P2d 575 (1983).

2. Procedural History: Basis of Federal

Jurisdiction

In his appeal through the state appellate

process, petitioner contended that the trial court erred

in denying his motion to quash the indictments,

because the grand jury was not selected by lot from

among all the jurors in attendance as required by

Article VII (Amended) § 5(2) of the Oregon

Constitution, which provides: "A grand jury shall

consist of seven jurors chosen by lot from the whole

number of jurors in attendance at the court, five of

whom must concur to find an indictment.”

In his original motions to quash back at the trial

court, petitioner also cited as the basis for his motion

the Fifth, Sixth and Fourteenth Amendments of the

United States Constitution. A copy of petitioner's

motions to quash are attached as Appendix D. See

specifi cally, paragraphs (3) and (4) on pages 68 and 69

of Appendix D. A copy of the trial court's order

denying the motion is attached as Appendix E. See

specifically, paragraph IV.

Camstitutional questions shown by the record to

have been raised in the state court give the U.S.

Supreme Court jurisdiction to review the case

notwithstanding that the appellate court of the state

did not refer to the federal question within its

opinion. International Harvester Company v. Missouri,

243 US 199, 34 SCt 859, 58 LEd2d 1276 (1914).

The Oregon Supreme Court held that the state

had merely com mitted certain "technical violations” of

the procedural statute and constitutional process for

impaneling a grand jury. The Oregon Supreme Court

was not impressed by the procedural deviation. The

court ruled that the procedural default in the grand

jury selection process was not sufficient to allow a

challenge to the conviction.

This Court has consistently held that the

question of when and how default in compliance with

state procedural rules can preclude consideration of a

federal question is itself a federal question. Whether

the petitioner's federal constitutional right was denied

or not given due recognition by the state appellate

courts, is a question for which the petitioner is

entitled to invoke this Court's judgment. Henry v.

Mississippi, 379 U.S. 443, 85 SCt 564, 13 LEd2d 408

(1965).

The language in Henry v. Mississippi presumes

that the state adheres to the procedural rules, and that

the petitioner was in violation. The Court ruled that

procedural default should not bar vindication of

important federal rights for the petitioner. Id. at 448.

Here, the petitioner urges compliance with the

procedures for grand jury selection, and it was the

state who violated its own procedure to the prejudice

of the petitioner.

REASONS FOR ALLOWANCE OF WRIT

This case presents important issues of federal

law which should be settled by this Court. The Oregon

Supreme Court decided, by its interpretation of

Article VI, § 5(2) of the Oregon Camstitution, to limit

due process guarantees of the federal constitution for

petitioner and Oregon citizens. Specifically, the

Oregon Supreme Court minimizes due process

guarantee by ignoring prior interpretation by this

Court of the purpose and effect of the due process

clause with respect to grand jury selection.

Discussion

L Minimal federal constitutional standards

preserve procedures to insure fair and random

selection of jurors for a grand jury. in this case,

certain state laws had been enacted and the Oregon

Constitution was written to insure preservation of a

fair and umbiased process for random selectio in

impaneling a grand jury. Oregon Constitution, Article

I, § 5(2). The court administrator, of the court in

which the petitioner served as district attomey for 16

years, supervised the impaneling of a special grand

jury which violated the procedures as required by state

statute and the Oregon constitution. It is clear from

the facts that the pool from which the petitioner's

grand jury was selected was diminished and massaged

and was not the pool intended by the Oregon

Constitution. The State Legislative Assembly could

not have constitutionally authorized the process of

selection used here.

Yet the Oregon Supreme Court narrowed its

focus to the language at Article VI, § 5(2) of the State

Constitution and found the practice to be acceptable.

The Oregon court failed to consider whether federal

constitutional standards were compromised.

The right to a fair trial in a fair tribunal is

basic to the due process clause of the United States

Constitution. This aspect of due process is quite

separate from the right to a particular form of

proceeding. If a state chooses, as Oregon has, to use a

grand jury, due process, as a federal constitutional

guaranteé, imposes limitations on the composition of

the jury. Peters v. Kiff, 407 U.S. 493, 501, 92 SCt

2163, 33 LEd2d 83 (1972).

Oregon undertook to provide limitations on it's

jury selection process, and then, in this instance,

allowed inexplicable deviation. Once a particular form

of proceeding is allowed, the process must be

preserved to ensure it is used to further it's

constitutional purpose; it must not be allowed to be

manipulated by the state to thwart constitutional ends.

The Oregon court ruled that although the

procedures for empaneling a grand jury were violated,

the "technical violations" were not sufficient to "result

in standing to launch a constitutional attack."

Gortmaker, supra, 295 Or at 522.

The Oregon court

held that petitioner failed to prove that the violations

were consequential to result in prejudice.

This Court has held that even if there is no

showing of actual bias in the tribunal, due process is

denied by circumstances that create the likelihood or

the appearance of bias. "Our system of law has al ways

endeavored to prevent even the probability of

unfairness." Peters, supra, 407 US at 502. These

principles of due process compel that a state cannot

subject a criminal defendant to indictment by a grand

jury that has been selected in an arbitrary and

discriminatory manner. Id.

While the Peters decision factually involved the

systematic exclusion of blacks from the jury, the

cour t's decision goes beyond that to preserving fairness

of process by compliance with constitutional and

statutory requirements to ensure against compromising

fair tribunal. "egal and unconstitutional jury

selection procedures cast doubt on the integrity of the

whole judicial process." Id. Here, the evidence was

not refuted that the selection process was unlawful

and arbitrary. Furthermore, it was supervised by

employees of the court in which petitioner had served

as District Attorney for sixteen years. The courthouse

and District Attomey's Office was intimately involved

in this case; the staffs were divided. Many lawyers,

judges and staff personne] testified at trial.

Formal criminal complaint by way of indictment from

a grand jury is one more constitutional safeguard for

the individual who stands accused at the mercy of the

state. This is recognized in the decision by the Oregon

Supreme Court below.

™, .. It is a familiar historical fact that

the system which was devised to prevent

harassments growing out of malicious,

unfounded, or vexatious accusations.

That it served the purpose of allowing

prosecutions to be initiated by the people

themselves in no way detracts from the

fact that it still stands as a safeguard

against arbitrary or oppressive action. .

..' United States v. Wells, 163 F. 313, 324

(D.C. Idaho 1908)." State v. Gortmaker,

295 Or 505, 512, __—«~P2d_ (1983).

Perhaps the greatest piece of evidence that a

state has in presenting the merits of its case in

prosecution of a defendant is the charging instrument

itself. The prejudicial effect of the very fact of

accusation by the law enforcement mechanism of the

state cannot be denied. The authors of the United

States Constitution recognized this and attempted to

offset the potential prejudice by imposing a heavy

burden of proof on the state, by allowing a trial by a

jury of peers, by mandating a presumption of

innocence, by providing the accused with the right to

confront his accuser, and by insuring constitutional

safeguards on how the charging instrument is

generated. Fifth, Sixth and Fourteenth Amendments

of the United States Constitution.

Our criminal justice process works well with all

of these constitutional counter-balancing provisions to

neutralize the fact of accusation. All of these

safeguards cumulate together to arrive at this

balance. When one safeguard is compromised, i.e.,

indictment process, the balance is upset and neutrality

2. For the Oregon Supreme Court to ignore

the die process provisim of the United States

Constitution as it has been interpreted by this Court,

and to allow less process for constitutional protection

of rights for a criminal defendant through

interpretation of the state constitution, is a violatio

of the supremacy clause of the United States

Constitution. The Oregon Supreme Court is the only

body with authority to ultimately determine the

meaning of the Oregon Constitution. It has rendered

its interpretation of Article VII, § 5(2) in a way that it

is not violated by the grand jury selection process in

this case. As demonstrated above, such selection

process does violate the due process clause of the

United States Castitution as interpreted by this

Court. Therefore, there is a conflict between the

United States Camstitution and the Oregon

Constitution with respect to the amount of protection

provided to an accused in insuring a properly and fairly

im paneled grand jury.

Where there is a conflict between the federal

and state constitution, the Supremacy Clause at

Article VI of the United States Castitution controls.

Reynolds v. Simms, 377 US 533, 84 SCt 1042, 12 LEd2d

506 (1964).

CONCLUSION

The Oregon Supreme Court failed to account

for constitutional safeguards in the United States

Constitution in rendering its construction of the

Oregon Castitution in a way that gives a criminal

defendant even less protection from state process in

the impaneling of the grand jury. The significance of

the issues transcends this particular case, because it

allows inexplicable deviation and arbitrary selection

procedures in the empaneling of a grand jury.

For all of the reasons discussed above, this

Petition for Writ of Certiorari to the Oregon Supreme

Court should be granted.

Respectfully submitted,

PAUL J. De MUNIZ

Counsel for Petitioner

APPENDIX A

Body of Decision of Oregon Supreme

Court, for which Petition for Writ

of Certiorari is brought.

This decision is reported as State v. Gortmaker, 295 Or

505, P2d_ (1983).

JONES, J.

Defendant appeals his conviction for two counts

of theft in the first degree and one count of official

misconduct. !

The sole question upon which we allow review is

whether the special grand jury which indicted the

defendant was constitutionally selected under Article

VII (Amended), Section 5, of the Oregon Constitution.

The Court of Appeals held that the grand jury

selection procedure violated the Oregon Constitution

but the defendant's subsequent "reliable conviction" by

@ properly selected trial jury negated the

constitutional violations and allowed the conviction to

stand. We affirm the Court of Appeals decision, but

for different reasons.

The defendant argues on constitutional grounds

that the trial court erred in failing to quash the

indictment on at least one of three grounds: (1) that

grand jurors were selected from a petit jury panel in

violation of Article VI (Amended), Section 5(IXb), of

the Oregon Constitution, (2) that the Marion County

Court Administrator excused prospective grand jurors

from the grand jury panel without authority of the

court and for reasons not allowed by statute and this

resulted in less than random selection, and (3) that

because some grand jury members were not selected

by lot from among all the jurors in attendance at the

court as required by Article VI (Amended), Section

5(2), of the Oregon Constitution.

The state responds that the defendant is

prevented from attacking the grand jury selection

procedure beciuse of the limitations of ORS 135.5101),

which reads:

"The indictment shall be set aside by the

court upon the motion of the defendant

in either of the following cases:

(a) When it is not found, indorsed and

presented as prescribed in ORS

132.360, 132.400 to 132.430 and

132.580.

(b) When the names of the witnesses

examined before the grand jury

are not inserted at the foot of the

indictment or indorsed thereon."

The state also takes the position that ORS

10.0500),2 as applied by ORS 132.030,° further

prohibits the defendant's challenge to the procedure

utilized for empaneling the grand jury. If the

defendant were simply claiming that the state had

violated a statute in the procedure that was utilized

for empaneling the grand jury, we would be inclined to

agree with the state that these statutes prohibit such a

challenge. For over 100 years such an objection has

been in effect a challenge to the panel and not to

individual jurors and such a challenge has long been

abolished by statute in Oregon. See, State v. Fitzhugh,

2 Or 227 (1867);4 see also State v. Dale, 8 Or 229

(1880); State v. Savage, 36 Or 191, 60 P 610, 61 P 1128

(1900). A predecessor statute?

was applied in State v.

Ju Nun, 53 Or 1, 97 P 96, 98 P 513 (1908), where this

court held that specific statutory challenges are the

only challenges allowed to a grand jury. However, we

did state "[iJt may be that, if persons were called or

summoned as jurors wholly without color of law, an

objection on that ground would be available to a

litigant, for in such a case the persons so called or

summoned would not be a jury either de facto or de

jure." Id. at 5. In Ju Nun we followed State v. Dale,

supra, where we said if a juror were improperly or

illegally drawn or summoned a challenge was available

outside the statute. The Ju Nun court held "[w)here,

however, the drawing and summoning is under color of

law and semblance of legal authority, and the jurors

are accepted and treated by the court as legal jurors,

they are at least such de facto; and it is not open toa

litigant to object to their serving in a particular case

on the ground that the law under which they were

drawn is unconstitutional." Ju Nun, 53 Or at 6.

In State v. Carlson, 39 Or 19, 25, 62 P 1016, 62 P

19 (1900), we held pursuant to the statute:

"* * * No challenge shall be made or

allowed to the panel from which the

grand jury is drawn, nor to an individual

grand juror, unless when made by the

court having thus imposed upon the court

the duty of ascer taining

qualifications of grand jurors before

accepting them, and prohibited all

persons from challenging the panel or

any individual grand juror, it remains to

be seen whether the statute, in these

respects, is violative of

constitutional provision. * * *" (Emphasis

supplied; citation omitted.)

In State v. Lawrence, 12 Or 297, 7 P 116 (1885), a

grand jury was empaneled under the authority of a

statute which allowed the jurors to be selected several

days prior to the start of the term of the court.

Although the statute prohibited a challenge to the

indictment on that ground, see State v. Whitney, 7 Or

386, 388 (1879), we found the statute under which the

grand jury was selected violated Article VII (Original),

Section 18, quashed the indictment and reversed the

defendant's conviction. We held:

"* * * [jt is the constitutional right of a

defendant accused of a crime to demand

that the indictment shall be found by a

grand jury selected only as provided in

the Constitution. * * *" Lawrence, 12 Or

at 300.

Review of this court's rulings for over LI6 years

clearly reveals that if the defendant had restricted his

attack to statutory grounds, he would be prohibited

from attacking the procedure used in empaneling the

grand jury. However, the defendant has consistently

argued that the selection procedure used in empaneling

the grand jury which indicted him was in violation of

the Oregon Constitution. Notwithstanding this

position, the trial court, relying upon ORS 135.510, and

the holding of State v. Bock, 49 Or 25, 88 P 318 (1907),

found that the defendant was prohibited from

attacking the grand jury selection procedure on

constitutional grounds. The Court of Appeals

disagreed and ruled the defendant could make a direct

constitutional challenge to the procedure outside the

complex maze of statutes, legislative history and court

decisions surrounding statutory violations.

Since Oregon's grand jury is created in the

constitution, we hold the grand jury procedure to

constitutional requirements. Article VII (Amended),

Section 5, of the Oregon Camstitution, mandates the

legislative assembly to provide by law for the selection

and qualification of grand jurors. Article VI

(Amended), Section 5, cannot be read as reserving to

the legislature the power to enact statutes which serve

to prevent constitutional challenges to grand jury

procedures.

The defendant's attack is restricted to a

constitutional challenge of the grand jury selection

procedure. The defendant makes no claim of actual

bias or prejudice of any of the grand jurors selected.

Because Oregon's constitution has an express provision,

Article VII (Amended), Section 5 (Xb), regarding the

selection of grand jurors from a petit jury panel, we

begin our discussion by tracing the history of the grand

jury and in particular the underlying principles

surrounding Article VI (Amended), Section 5(1Xb).

HISTORICAL ROOTS OF THE GRAND JURY

The origin of the grand jury is veiled in

6 It has never been resolved whether the

obscurity.

idea developed from ancient Roman law,’ whether it

was a Norman institution introduced into England by

William the Conqueror,® or whether it developed in

England out of Anglo-Saxon institutions.” The earliest

recorded juries were employed to investigate and

answer inquiries addressed to them by the king:

"* * * The function of the jury of

presentment [grand jury) shows that it is

the lineal descendant of these juries. It

is summoned to discover and present to

the king's officials persons suspected of

serious crime. It is probable that the

regular use of the jury for this purpose in

the royal courts dates from the Assize of

Clarendon. * * * It made the use of the

presenting jury general, both in the

courts held by the king's judges and the

sheriff's tourns. We have seen that both

at the Eyre and the tourn presentments

were made by representative juries from

the hundred. These juries could present

either from their own knowledge or from

the informaiion of others, just as at the

present day the grand jury may present

matters which they themselves have

observed, or, as is more usual, may

endorse the indictments or accusations

made by others.

"We have seen that in the thirteenth

century the jury was selected, as

directed by the Assize of Clarendon,

from the several hundreds. Juries of this

kind were needed to answer the detailed

enquiries contained in the articles of the

Eyre. But, when the general Eyre

ceased, when criminal justice had come

for the most part to be administered by

either the itinerant justices acting under

more limited commissions, or by the

justices of the peace in quarter sessions,

the method of the selection of the grand

jury changed. The sheriff was directed

to summon for the business either of the

assizes or of the quarter sessions twenty-

four persons from the body of the

county. From these, twenty-three are

chosen, a majority of whom decides

whether to 'find a true bill’ or ‘ignore’ the

accusations preferred.

"The presentments made by the grand

jury do not and never did amount to an

assertion that the person presented is

guilty. They are merely an assertion

that he is suspected. * * * [Jn the

thirteenth and earlier part of the

fourteenth century all or some members

of the grand jury always formed part of

the petty jury; and the judges sometimes

considered that when the members of a

petty jury who had presented a person as

suspected, acquitted him, they had

contradicted themselves, and could be

pene. But, as the grand jury came to

separated from the petty jury, the

distinctive character of their functions

was more clearly realized. It came to be

recognized that the function of the grand

jury is merely to say whether from the

evidence for the prosecution (at which

alone they look) there is probable ground

for suspicion." (Footnotes omitted.)

Holdsworth, History of English Law, Vol

I, p 321-22 (1922).

The criminal petit jury was preceded in

historical development by the accusing (grand) jury and

evolved from it. Holdsworth, supra. The Crown,

interested in securing convictions, was opposed to the

total elimination from the petit or trial jury of all the

members of the presenting jury. "As Parning, J., said

in 1340: If indicters be not there it is not well for the

king.' Y.B. 14, 15 Ed. DI (R.S.) 260." Holdsworth, supra

at 325. "Gradually, however, the grand jury and the

petty jury became separated, and the feeling against

the practice of including indictors in the trial jury

became so pronounced that in 1351-1352 a statute was

enacted which prevented an indictor from sitting m

the trial jury of one indicted for felony or trespass if

Survey of the Grand Jury System, 10 Or L Rev 101, ll4

the accused challenged him."

(1931).

in United States v. Wells, 163 F 313, 324 (DC Idaho

A grand jury serves a high function. As stated

1908):

The same view was stated by Mr. Justice Field, sitting

"* * * It is a familiar historical fact that

the system was devised to prevent

harassments growing out of malicious,

unfounded, or vexatious accusations.

That it serves the purpose of allowing

prosecutions to be initiated by the people

themselves in no way detracts from the

fact that it still stands as a safeguard

against arbitrary or oppressive action * *

. a

as Circuit Justice:

"* * * In this country, from the popular

character of our institutions, there has

seldom been any contest between the

government and the citizen which

required the existence of the grand jury

as @ protection against oppressive action

of the government. Yet the institution

was adopted in this country, an is

continued from considerations similar to

those which give to it its chief value in

England, and is designed as a means, not

only of bringing to trial persons accused

Wayne L. Morse, A

of public offenses upon just grounds, but

also as the means of protecting the

citizen against unfounded accusation,

whether it comes from the government,

or be prompted by partisan passion or

private enmity.” Quoted from 2 Sawy

668 in United States v. Wells, Ibid.

OREGON'S GRAND JURY SYSTEM

Following considerable debate, ! 0 the framers of

Oregon's Canstitution created a grand jury system

embodied in Article VI, Section 18, of the original

constitution: !}

"The Legislative Assembly shall so

provide that the most competent of the

permanent citizens of the county shall be

chosen for jurors; and out of the whole

number in attendance at the court, seven

shall be chosen by lot as grand jurors,

five of whom must concur to find an

indictment: but the Legislative

Assembly may modify or abolish grand

juries.”

In 1899, the legislature authorized as an

alternative to indictment by grand jury, prosecution on

information of the district attomey. Or Laws 1899, p.

99. A 1908 constitutional amendment repealed the

1899 statute prospectively and required indictment in

all cases. In 1910, Section 18 was amended by Section 5

which substantially added language to the selection

process providing:

"The Legislative Assembly shall so

provide that the most competent of the

permanent citizens of the county shall be

chosen for jurors; and out of the whole

number in attendance at the court, seven

shall be chosen by lot as grand jurors,

five of whom just concur to find an

indictment. But provisions may be made

by law for drawing and summoning the

grand jurors from the regular jury list at

any time, separate from the panel of

petit jurors, and for the sitting of the

grand jury during vacation as well as

session of the court, as the judge may

direct. No person shall be charged in any

circuit court with the commission of any

crime or misdemeanor defined or made

punishable by any of the laws of this

state, except upon indictment found by a

grand jury: provided, however, that any

district attomey may file an amended

indictment whenever an indictment has

by ruling of the court been held to be

defective in form."

A 1927 amendment to this section permitted

waiver of indictment by the accused, with power in the

district attomey to then proceed by information:

"* * * No person shall be charged in any

circuit court with the commission of any

crime or misdemeanor defined or made

punishable by any of the laws of this

state, except upon indictment found by a

grand jury; provided, however, that any

district attomey may file an amended

indictment whenever an indictment has,

by ruling of the court, been held to be

defective in form; provided further,

however, that if any person appears

before any judge of the circuit court and

waives indictment, such person may be

charged in such court with any such

crime of misdemeanor on information

filed by the district attorney * * *."

A 1958 amendment repealed Section 18 of

Article VII (Original) and empowered the cour* to

empanel more than one grand jury ina county. In 1974,

Article VII (Amended), Section 5, of the Oregon

Constitution was repealed following a referendum vote

by the people. The following section was adopted:

"(1) The Legislative Assembly shal!

provide by law for:

"(a) Selecting juries and the

qualifications of jurors;

"(b) Drawing and summoning grand

jurors from the regular jury list at

any time, separate from the panel

of petit jurors;

"(c) Empaneling more than one grand

jury in a county; and

"(2)

"(3)

(4)

"( 5)

The sitting of a grand jury during

vacation as well as session of the

court.

A grand jury shall consist of seven

jurors chosen by lot from the

whole number of jurors. in

attendance at the court, five of

whom must concur to find an

indictment.

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 cri:ne

punishable as a felony mly mm

indictment by a grand jury.

The district attomey may charge

& 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 knowingly

waives indictment.

The district attorney may charge

a person on an information filed in

circuit court if, after a

preliminary hearing before a

magistrate, the prison has been

held to answer upon a showing of

probable cause that a crime

punishable as a felony has been

comm mitted 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.

"(7) In civil cases three-fourths of the

jury may render a verdict.” Or

Const, Art VII (Amended), § 5.

Of significance is that the 1974 amendment

eliminated the constitutional requirement that the

grand jurors should be selected from the most

competent of the permanent citizens of the county,

substituting a mandate to the legislative assembly to

provide by law for selecting juries and the

qualifications of jurors. ORS 10.110 (amended by Or

Laws 1955, ch 717, § 1; Or Laws 1957, ch 393, § 1; and

Or Laws 1973, ch 836, § 312) had previously

substantially adopted the language from the

constitution and no _ additional legislation was

required. ORS 10.110 provides:

"The county clerk of each county shall,

at the first term of each year of the

circuit court for the county, or in case of

an omission or neglect so to do then at

the following term, make a list of the

most competent of the permanent

citizens of the county by selecting names

by lot from the latest voter registration

lists or any other source which will

furnish a fair cross section of the county

wherein the court convenes, denominated

@ preliminary jury list. From. the

preliminary jury list the names of those

persons known not to be qualified by law

to serve as jurors shall be deleted. The

remaining names shall constitute the jury

list. The names of those persons deleted

from the preliminary jury list shall be

placed on a separate list, denominated

rejected prospective jurors, and opposite

each name the reason for removing the

name shall be set forth."

SELECTION OF THE SPECIAL GRAND JURY

We allowed review limited to the grand jury

selection procedure and, consequently, a discussion of

the facts involved in the offense is unnecessary.

Defendant was the Marion County District

Attorney from 1965 until his conviction. Following an

investigation by Oregon's Attomey General, a special

grand jury was empaneled in Marion County to

investigate allegations of criminal conduct by the

defendant largely occurring under the guise of his

official position as district attomey. The special

grand jury returned indictments which resulted in

defendant's conviction. The Court of Appeals found

"(t]he method of selecting this grand jury violated

Article VI [Amended], Section 5(2), and the trial court

erred in failing to quash the indictment.” State v.

Gortmaker, 60 Or App 723, 736, 655 P2d 575 (1982).

However, the Court of Appeals upheld the defendant's

conviction because the error "has not affected the fact

finding process" and he was "not prejudiced." Id. at

740,

Marion County is not unlike several Oregon

counties which found it efficient to employ

professional managers to administer the court's

business. These "court administrators"!4 have had

wide-ranging duties and responsibilities and

accordingly were efforded some _ discretion to

successfully accomplish their managerial tasks. The

Marion County Court Administrator, among various

other duties, was delegated by the circuit court the

responsibility for summoning persons to serve on the

county's grand and petit juries. Concurrent with this

delegation of responsibility was a delegation of

authority to make decisions regarding the process that

would be used for the summoning of the jurors. In

January, 1980, the Marion County Court Administrator

summoned 250 persons pursuant to ORS 10.110, infra,

for service on the jury panel of both the district and

circuit courts for Marion County. Approximately 70 to

95 actually reported for jury duty. The court

administrator testified those excused from duty were

excused for various reasons either by circuit or district

court judges or by court administrative staff. !5

Although the normal term of jury duty in

Marion County is two months, this particular jury

panel was extended by court order for four months in

an effort to relieve the county of financial

constraints. Some of the original 70 to 95 jurors were

excused from further duty after having served four

weeks, see ORS 10.050(3).!6 Some members were

temporarily excused for personal reasons by a judge or

court staff members.

The court administrator testified she received

instructions from a circuit court judge to summon

jurors for a special grand jury to hear evidence in the

defendant's case. On May 21, 1980, the court

administrator drew by lot the names of 10 prospective

jurors for the special grand jury from all the original

jurors remaining for jury duty known to be available

for duty commencing May 27.'7 None of the jurors

was physically present at the court during this

selection. The selection was supervised by a circuit

court judge. Of the 10 jurors selected by lot, five

either could not be reached by the court staff or

indicated that they would be unavailable for duty m

May 27. The court administrator excused these five

jurors.

On May 22, 1980, a court clerk selected four

more jurors by lot from the initial group. Again, none

of the jurors was physically present at the court at the

time of the selection, and this selection was also

supervised by a circuit court judge. The actual

selection of the grand jury was to be made the

following Tuesday, May 27, 1980.

On Friday, May 23, 1980, the court clerk

responsible for calling prospective petit jurors was told

that juries for two district court cases would be

needed the following Tuesday, May 27, 1980. (Monday,

May 26, 1980, was a holiday).

On Friday, May 23, 1980, the court clerk

responsible for calling prospective petit jurors was told

that juries for two district court cases would be

needed the following Tuesday, May 27, 1980. (Monday,

May 26, 1980, was a holiday.) By this time the number

of regular jurors available for service, for unexplained

reasons, had been reduced to some 30 to 40 jurors.

The names were on a list. After calling the first 25 of

the 30 to 40 persons whose names were on the list, the

clerk was able to reach 18, who were requested to

appear for jury duty the following Tuesday. Seventeen

showed up on Tuesday.

On Tuesday, May 27, eight of the nine jurors

selected on May 21-22, 1983, reportec for duty. Two

were excused by a circuit court judge after the.court's

voir dire. Finding it necessary to select one additional

juror to complete the special grand jury, and an

alternate, a judge's secretary obtained the names of

the 17 jurors who had been called (as petit jurors) to

hear district court cases, and from these 17 jurors the

final grand juror was drawn by lot. These 17 jurors

were physically present at the court during the

selection which was supervised by a circuit court

judge.

IMPROPER EXCUSING ISSUE

The defendant argues that the court

administrator excused prospective grand jurors from

the grand jury panel without the authority of the court

and for reasons not allowed by _ statute and

consequently violated the defendant's constitutional

rights. The record is not a model of clarity on this

point, however there is adequate support to rebut the

defendant's argument ORS 10.050(1) states that "[t]he

court shall excuse a person from acting as a juror upon

a showing of undue hardship or extreme inconvenience

to the person * * *." Although a judge did not

personally excuse each juror, the facts indicate that

the court administrator excused prospective jurors and

did so pursuant to delegated authority. The extent to

which the circuit court judges were consulted by the

administrator's office during the initial panel selection

process is disputed by the parties, although it appears

the administrator handled most of the determinations

of whether particular jurors were required to report

for service, and there is some evidence that court

administrative personnel excused some prospective

jurors for non-statutorily defined reasons. There is no

showing such exclusions were based on criteria

reflecting either a discrimination intent or effect. In

these circumstances, we cannot say any errors

contravened the principle of objectivity or random

selection or otherwise violated the constitution. The

record indicates the court staff's actions were

consistently monitored, controlled or ratified by one or

more circuit court judges. !8

CONSTIT UTIONALIT Y OF DRAWING GRAND

JURORS FROM A PETIT JURY PANEL

We think it was with English history in mind !9

that the 1910 Legislative Assembly sought to insure

that a member of an indicting grand jury would not be

allowed to sit as a petit juror to judge the guilt or

innocence of the one indicted. To insure that such an

occurrence would not happen, those empowered with

the selection of the members of the grand jury were

constitutionally mandated to insure that no petit jury

member had been on the indicting grand jury. In 1974,

Article VI (Amended), Section 5(1Xb), continued this

mandate by directing that grand jurors shall be

selected by "drawing and summoning grand jurors from

the regular jury list at any time, separate from the

panel of petit jurors." We read this provision to

operate in only one direction. A grand juror who sits

on an indicting grand jury may not sit on the petit jury

which hears the case against the same defendant. This

does not mean, ipso facto, that one who has served on

a petit jury during the term of a panel may not be

selected to sit on a grand jury during the same term.

We do not see how the defendant could be prejudiced

by the presence of such a juror on the grand jury and

believe our analysis to be consistent with the intent

and spirit of the constitution. See _ generally,

Comments, Grand Jury Selection: Voter Registration

Lists as a Cross Section of the Community, 52 Or L

Rev 482 (1973).

We find no constitutional infirmity resulting

from the selection of the last grand juror from a petit

jury panel.

IN ATTENDANCE AT THE COURT ISSUE

The defendant contends that the grand jurors

were not selected "from the whole number of jurors in

attendance at the court.” Article VII (Amended),

Section 5(2).7 The defendant suggests. this

constitutional provision means every prospective grand

juror, be it the initial panel of 250, the reduced panel

of 70 to 95, or even the 40 jurors, required by statute,

ORS 10.220(1), 2! must be physically in the confines of

the room in which the prospective grand jurors are

selected. Defendant offers no explanation for the

possible purpose that could be served by such a

procedure and offers no authority in support of his

position.

In State v. McReynolds, 212 Or 325, 328, 319 P2d

904 (1957), we held:

‘"* * * Casual reference to Oregon

Constitution, amended Article VI, § 5,

will disclose that there is no longer any

constitutional requirement that grand

jurors be chose from the 'whole number

in attendance at the court' if provision is

otherwise made by law, as authorized in

that section. We find no statute which

has taken advantage of the alternative

procedure authorized in that section and

therefore we conclude that the grand

jury which the court found to have been

duly impaneled during the May 1956 term

was chosen under the provisions of ORS

132.020. That section prescribes the

method by which grand jurors shall be

selected and may be accepted by the

court from the jurors in attendance upon

the court at the time of the selection. *

* *"

Until the time that the circuit court judge

actually selected the members of the grand jury they

were merely "prospective grand jurors" and their

physical attendance at the court when their names

were selected was unnecessary, not required by the

constitution, and not required to avoid prejudice to the

defendant. We think a reasonable interpretation of "in

attendance at the court” in this context means

summoned and under court supervision, but not

necessarily physically present. 22 Consequently, we

find no violation of the defendant's constitutional

rights in this regard.

RANDOM SELECTION

The Oregon Constitution, Article VI

(Amended), Section 5(2), requires that the grand jury

be "chosen by lot from the whole number of jurors in

attendance at the court.” ORS 10.220(1) directs that

"40 names shall be drawn, from which number the

grand jurors * * * for the term are selected * * *,."

The record in this case indicates that 70 to 95 jurors

formed the original panel from which the grand jury

members were selected at two separate drawings. In

the second drawing, the seventh member was selected

in the manner set forth at pages 20-2. It is this

second drawing that requires clase scrutiny.

One of the reasons underlying the constitutional

and statutory requirements that the jurors be chosen

by lot is to guarantee that the selection will be made

in a random manner. Random selection is to prevent

the hand-picking of some jurors or the systematic

exclusion of others to obtain a fair cross-section of the

community. See, United States v. Davis, 546 F2d 583,

589 (5th Cir), cert den 431 US 906 (1977). However, the

fundamental purpose of the law is to prevent

discrimination, whether it be on account of race,

color, religion, sex, national origin, or economic

status. Where the procedural errors made by those in

charge of selecting jurors do not raise the possibility

of defeating this goa!, a court should be hesitant to

order the drastic remedy of the dismissal of

indictments.

We are satisifed that the selection of the

seventh grand juror complied with the statute and

constitution. The name was selected "by lot." The 17

names were selected on a Friday for petit jury service

the next Tuesday. At that time, for reasons that are

not clear from the record, there were but 30 to 40

regular jurors available for service the following

Tuesday. The selection of the 17 names was not made

with grand jury service in mind. The selection appears

to have been made in a random manner in the sense

that the clerk called names from the list of available

jurors until 18 persons were reached. On the following

Tuesday, when the grand jury selection procedure

turned up one short, the name of the seventh grand

juror was selected at random from the names drawn

the previous Friday, who arrived on Tuesday.

There is nothing to suggest that the "whole

number of jurors in attendance at the court” the

previous Friday exceeded the 30 to 40 previously

referred to. The selection appears to have been made

in random fashion.

One result of requiring seven grand jurors to be

chose from a starting pool of 40, ORS 10.220(1), is the

creation of a ratio of at least 7-in-40 (4.7-to.1), to

insure a random cross-section of the community. In

the instant case, when the final juror was drawn from

the names of 17 who had been selected in an essentially

random manner, the mathematical ratio increased to

17-to-L.

CONCLUSION

The unique facts of this case allow the

defendant a direct constitutional attack mm _ his

indictment. Unconstitutional grand jury selection

proceedings cast doubt on the integrity of the whole

judicial process, compare, Peters v. Kiff, 407 US 493,

92 S Ct 2163, 33 L Ed 2d 83 (972), and cannot be

tolerated in Oregon. But such was not the case here.

We hasten to point out that every alleged

misapplication of state law does not constitute an

Oregon constitutional question. Technical violations

of statute which result in grand juries which are drawn

in a manner not strictly according to statute but result

in proper persons being fairly drawn by lot will not

necessarily result in standing to Jaunch a constitutional

attack to quash an indictment. Inconsequential

statutory irregularities will not vitiate the

indictment. See, State v. Champeau, 52 Vt 313, 36 Am

Rep 754 (1880); see also State v. Clark, 14] Iowa 297,

9 NW 719 (1909) (that a grand jury list from which a

panel was drawn contained 73 names, instead of 75, as

required by law, did not affects its validity).

As we stated in State v. Brumfiled, 104 Or 506,

5ll, 209 P 120 (1922):

"In this state the courts have always

refused to allow mere _ technical

objections to the method of impaneling a

grand jury to enable a defendant to

escape the conseqences of a trial upon

the merits. [Citations omitted].”

The defendant has failed to show that the

ultimate and — a constitutional grand jury selection —

was not obtained. As the United States Supreme Court

said in Beck v. Washington, 369 US 541, 555, 82S Ct

955, 8 L Ed 29 98, 110, reh den 370 US 965 (1962), "we

would be exalting form over substance” if we were to

set aside this conviction.

The Court of Appeals is affirmed but for the

reasons stated in this opinion.

FOOTNOTES

I The Court of Appeals opinion states the

defendant is appealing his convictions for theft in the

first degree, tampering with public records, unsworn

falsification, and official misconduct. The record

indicates that the defendant was indicted for three

counts of theft in the first degree, two counts of

tampering with public records, two counts of unsworn

falsification, and one count of official misconduct.

The jury found the defendant guilty of all eight

counts. The trial court issued three separate

judgments. On one count of theft the defendant was

sentenced to a discharge. On the official misconduct

count, the defendant was sentenced to pay a $500

fine. The remaining six counts were merged on the

state’s motion into a single count of first degree theft

for which the defendant was sentenced to a term of

imprisonment not to exceed four years.

ORS 10.05 0(1):

"The court shall excuse a person from acting as

a juror upon a showing of undue hardship or

extreme inconvenience to the person, the

person's family, the person's employer or the

public served by the person. In applying this

subsection the court shall carefully consider and

weigh both the public need for juries which are

representative of the full community and the

individual circumstances offered as a

justification for excuse from jury service. A

person may request and be granted excuse from

jury service under this subsection by means of

telephone communication or mail.”

3 ORS 132.030 provides:

"Neither the grand jury panel nor any individual

juror may be challenged, but the court may at

any time after a juror is drawn refuse to swear

him or discharge him upon a finding that the

juror is disqualified from service for any of the

reasons prescribed in ORS 10.050."

Although the state has cited this case in support

of its position, we read that part of the court's holding

as obiter dicta because of the court's finding that the

defendant failed to object at the time the grand jury

was empaneled and swom and was deemed to have

waived any objections.

5 General Laws of Oregon, ch 10, § 115, p 460

(Deady Code 1845-1864), provided:

"The indictment must be set aside by the

court, upon the motion of the defendant,

in either of the following cases:

"(1) When it is not found, endorsed and

presented as prescribed in chapter VII of

this code;

"™(2) When the names of the witnesses,

examined before the grand jury, are not

inserted at the foot of the indictment or

endorsed thereon."

6 See, Forsyth, Trial by Jury (1875: "Few

subjects have exercised the ingenuity and baffled the

research of the historian more than the origin of the

jury."

7 Pollock & Maitland, History of English Law, Vol

I, at 141 (2d ed 1898, reissued 1968).

8 Edwards, The Grand Jury, 2 (1906).

9 Ibid. n Ul.

See Carey, The Oregon Constitution and

Proceedings and Debates of the Constitutional

Convention of 1857 (1926) (printed under the direction

of the Oregon Historical Society, in accordance with

the provisions of Or Laws 1925, ch 379).

1] We have reviewed the careful study conducted

by Palmer, The Sources of the Oregon Constitution, 5

Or L Rev (1926). In the opinion of this author, the

article on the judicial department is a combination of:

"(1) the minds of the members of the

committee of the judicial department,

(2) the judicial system in vogue under the

territorial government, and (3) the

Wisconsin judicial system as outlined in

Article VI, Wisconsin Castitution of

1848. There are certain earmarks which

seem to indicate that Article VI may be

traced to the Wisconsin Constitution of

1848. At the outset it may be stated

with confidence that the framers of the

article were thoroughly familiar with the

act of Congress passed August 14, 1848,

entitled an Act to Establish the

Territorial Government of Oregon."

12 A review of the legislative history preceding

this statute indicates that the major purpose of the

legislation was to create a uniform method of

preparing jury lists. Minutes, Senate Bill 49, Senate

Judiciary Committee, Feb. 8, 1957.

13 ORS 10.110 was also amended by Or Laws 1981,

ch 3, § 44, which has no relevance here.

Various names may apply to the same position

such as "jury supervisor," etc.; however, "court

administrator" can be found in various statutes, e.g.,

ORS 10. 460.

15 The court administrator testified that various

reasons such as advanced age, health, inability to

locate, and job conflicts formed the basis for the

decision to excuse jurors.

16 ORS 10.05 0(3):

"A person shall not.be required to serve

as a petit juror at any one term of the

court for more than four weeks, and

shall, upon application, be entitled to be

discharged from further attendance upon

the court as a juror at such term, after

having served for a reasonable period of

time, as determined by the court, not to

exceed four weeks.”

17 The court administrator testified she was

unable to recall how many prospective jurors remained

at the time of the selection.

18 ORS 10.330 provides in pertinent part:

"The county clerk shall, within one week

after the court's adjournment, make and

file in his office a certified list of all the

jurors returned to the court, specifying:

"(1) Those who were discharged for want

of qualification, or by reason of

exemption.

"(2) Those who did not appear, or were

discharged for any reason."

We have reviewed the certified list in the record and

find plausible reasons for the excuse of the various

jurors.

19 As to the development of the grand jury as an

institution here and in England, see United States v.

Johnson, 319 US 503, 63 S Ct 1233, 87 L Ed 1546 (1943);

McGrain v. Daugherty, 273 US 135, 157, 47 S Ct 319, 71

L Ed 580 (1927); Blair v. United States, 250 US 273,

282, 39 S Ct 468, 63 L Ed 979 (1919); Hale v. Henkel,

201 US 43, 59, 26 S Ct 370, 50 L Ed 652 (1906); 4

Blackstone Commentaries 301, et. seg.; and further see

State v. Tucker, 36 Or 291, 61 P 894 (1900), for Justice

Wolverton's thoughtful discussion of the history of the

grand jury.

20 ORS 132.010 uses the language "drawn by lot

from the jurors in attendance upon the court at the

particular term." (Emphasis added.)

ORS 10.220(1) provides in relevant part:

"For the circuit court, 40 names shall be

drawn, from which number the grand

jurors and trial jurors for the term are

selected as provided by law * * *."

There are at least 38 statutes in Oregon which

use the term "in attendance," ranging from ORS

21.460, "actually in attendance,” to ORS 52.520, "then

in attendance upon the court." Each must be viewed

from a factual perspective.

APPENDIX B

IN THE SUPREME COURT

OF THE STATE OF OREGON

STATE OF OREGON,

Respondent on review, SC 29266

Motion to Recall &

Reissue Decision &

Judgment

GARY D. GORTMAKER,

Petitioner on review.

The State of Oregon, respondent, moves for an

order recalling the decision and judgment issued in the

above-entitled case on or about October 4, 1983, and

reissuing the same on October ll, 1983. This motion is

made on the ground that the decision and judgment

was prematurely issued, in that the Court denied

Gortmaker's petition for rehearing in this case mm

September 20, 1983; and under ORS 19.190, 138.265, and

ORAP 11.03(4), the judgment is stayed, by operation of

law, until 21 days thereafter, i.e. until October Il,

1983. Petitioner's counsel, Paul De Muniz, was

contacted and authorized respondent to state that he

has no objection to this motion.

Respectfully submitted,

DAVE FROHN MAYER (71001)

Attomey General

WILLIAM F. GARY (77032)

Deputy Attomey General

JAMES E. MOUNTAIN JR. (75267)

Solicitor General

THOMAS H. DENNEY (66034)

Assistant Attorney General

Attomeys for Respondent

APPENDIX C

IN THE SUPREME COURT

OF THE STATE OF OREGON

STATE OF OREGON,

Respondent on review, SC 29266

ORDER

GARY D. GORTMAKER,

Se ee ee ee ee ee ee ee”

Petitioner on review.

THIS MATTER is before the Court am the

Respondent on Review's motion to recall and reissue

the final order @™ Petitioner a@m Review's motion for

rehearing. The Court being advised in the premises,

therefore

IT IS ORDERED that the final order issued

herein on or about October 4, 1983, is recalled and the

same shall issue on or after October Ll, 1983.

DATED this 6th day of October, 1983.

/s/Edwin J. Peterson

Chief Justice

APPENDIX D

IN THE CIRCUIT COURT

OF THE STATE OF OREGON

FOR THE COUNTY OF MARION

No. 119905, 119906, 119907 & 119908

STATE OF OREGON,

Plaintiff,

Vv.

GARY D. GORTMAKER,

i i i

Defendant.

MOTION TO QUASH, DISMISS

OR SET E THE INDICTMENT

Comes now the defendant, by and through his

attomey, Paul J. De Muniz, and moves the Court for

an order quashing, dismissing or setting aside the

indictment on the following grounds:

(l) The Grand Jury was not properly

selected as follows:

(a) Jurors initially selected for Grand

Jury service were not drawn by

lot from those in attendance upon

the court. ORS 132.010. Article

vo, $ 5S of the Oregon

Constitution.

(b) Some of the grand jurors so

selected were excused by someone

other than the court in violation

of ORS 10.050.

(ce) Two grand jurors were excused by

the court in violation of the

requirements for excusal found in

ORS 10.050.

Respectfully submitted,

GARRETT, SEIDEMAN, HEMANN,

ROBERTSON & De MUNIZ, P.C.

By: Paul J. De Muniz

Of Attorneys for Defendant

IN THE CIRCUIT COURT

OF THE STATE OF OREGON

FOR THE COUNTY OF MARION

No. 119905, 119906, 119907 & 119908

STATE OF OREGON,

Plaintiff,

Vv.

GARY D. GORTMAKER,

Defendant.

MOTION TO QUASH INDICTMENTS OR IN THE

ALTERNATIVE TO DISMISS INDICTMENTS —

Comes now the defendant, by and through his

attomeys, Williams & Spooner, and moves the court

for an order quashing or in the alternative dis missing

the indictment in the above-entitled cases, on the

following grounds:

(1) The proceedings before the Grand Jury

were conducted by Michael D. Schrunk, who was not

and is not District Attomey for Marion County, the

Attorney General for the State of Oregon, or a

lawfully appointed Assistant Attomey General or

special prosecutor. ORS 132.090, ORS 180.020, ORS

180.080, ORS 180.130, ORS 180.140, Art. I, § 10 of the

Oregon Constitution and the Fifth and Fourteenth

Amendments to the United States Camstitution.

(a) Michael D. Schrunk, who was not and is

not District Attomey for Marion County, the Attomey

General for the State of Oregon, or a lawfully apointed

Assistant Attomey General or special prosecutor, was

present during the sittings of the Grand Jury. ORS

132.090.

(b) Michael D. Schrunk, who was not and is

not District Attorney for Marion County, the Attorney

General for the State of Oregon, or a lawfully

appointed Assistant Attorney General or special

prosecutor, advised witnesses before the Grand Jury,

and prepared and presented indictments in the above-

entitled cases to the Grand Jurors. ORS 132.330. ORS

132.340.

(2) James Redden and Michael D. Schrunk,

in order to obtain defendant's cooperatim in the

investigation promised defendant the following

procedures would be utilized:

(a) The prosecutor would develop the facts

for both sides of the case.

(b) Prepare a written report, disclose said

report to defendant, and allow defendant to respund to

the report before the report was presented to the

Governor.

allegations of wrong doing by defendant.

In order to obtain defendant's cooperation and

testimony before the Grand Jury, Michael D. Schrunk

promised defendant as follows:

(d) Provide defendant with a list of

witnesses examined by the Grand Jury in advance of

defendant's testimony before the Grand Jury.

(e) Report and preserve all Grand Jury

Proceedings.

Michael D. Schrunk and James Redden failed to

perform each of the above-mentioned promises, and

used certain of defendant's records turned over by

defendant in reliance om Michael D. Schrunk's

promises, as evidence before the Grand Jury. The

breach of Micahel D. Schrunk and James Redden's

agreement denied defendant due process of law in

violation of Art. I, § 10 of the Oregon Camstitution and

the Fifth and Fourteenth Amendments to the United

States Camstitution. Santabello v. New York, 404 US

257, 92 S Ct 495, 30 Led 2d 427 (1971), Stewart v.

Cupp, 12 Or App 167, 506 P2d 503 (1973).

(3) Defendant was denied due process of law

when the Grand Jury's selection process resulted in

systematic exclusion of any person who knew, were

acquainted with or in any way connected with

defendant. Fifth, Sixth and Fourteenth Amendments

to the United States Camstitution, Art. I, § 10 of the

Oregon Constitution, Art. VI, § 5(2) of the Oregon

Constitution, ORS 10.030, ORS 110.050, ORS 132.010,

ORS 132.020, and ORS 132.030.

(4) Defendant was denied due process of law

in the Grand Jury selection process in that the Grand

Jurors selected in May were from the March-April

term of court and not from the May-June term of

court. Fifth, Sixth and Fourteenth Amendments to the

United States Constitution, Art. V0, § 5(2) of the

Oregon Camstitution, ORS 10.210.

(5) The Attorney General for the State of

Oregon, by and through its agents, undertook an

investigation of defendant, before being directed to do

so by the Governor of the State of Oregon. Evidence

obtained prior to the date of authorized investigation

was used in the authorized investigation and

considered by the Grand Jury. Art. I, § 10 of the

Oregon Constitution, Fifth, Sixth and Fourteenth

Amendments to the United States Constitution, State

ex rel Thomton v. Williams, et. aL, 215 Or 639, 336

P2d 68 (1959).

(6) | Michael D. Schrunk was not a lawfully

appointed special prosecutor, but acted as special

Assistant Attomey General and utilized the staff of

the Attorney General's Office in investigating

defendant. Utilization of the Attomey General's staff,

denied defendant, a State official, due process of law

and the right to effective assistance of counsel. Art.

I, $$ 10 and ll of the Oregon Constitution, Fifth, Sixth

and Fourteenth Amendments to the United States

Constitution.

(7) Michael D. Schrunk did not perform the

duties of an independent prosecutor, but allowed the

Governor, his assistants, and the Attomey General's

Office to decide whether to convene the Grand Jury to

consider charges against defendant and thereby denied

defendant due process of law. Art. I, §§ 10 and Il of

the Oregon Camstitution and the Fifth and Fourteenth

Amendments to the United States Constitution.

This motion is based upon the files and records

of the above-entitled case, the affidavits of defendant,

Ralph C. Spooner, Carlton Loennig, attached hereto

and by this reference made a part hereof, and letters

of James Redden, Victor Atiyenh and James Brown,

collectively marked Exhibit A, 1-3, attached hereto

and by this reference made a part hereof. The

affidavit of Bruce W. Williams will be filed forthwith.

Respectfully submitted,

WILLIAMS & SPOONER

By:

RALPH SPOONER

Of Attomeys for Defendant

APPENDIX E

IN THE CIRCUIT COURT

OF THE STATE OF OREGON

FOR THE COUNTY OF MARION

No. 119905, 119906, 119907 & 119908

STATE OF OREGON,

Plaintiff,

Vv.

GARY D. GORTMAKER,

Defendant.

OMNIBUS HEARING ORDER

On July 10, 1980, this matter came before the

court for an omnibus hearing (ORS 135.037) with the

Honorable Roland K. Rodman presiding, the plaintiff,

State of Oregon, appearing by and through Michael D.

Schrunk, Special Assistant Attorney General, Robert

C. Cannon, Assistant Attomey General, and James M.

Mountain, Jr. Assistant Attorney General, and the

defendant, Gary D. Gortmaker, appearing in person

and with his attorneys, Bruce W. Williams and Paul J.

De Muniz.

The respective parties having submitted

evidence, oral argument and memorandum to the

court; the court hereby makes the following findings of

fact and conclusions of law in the following

particulars:

On the state's motion to quash subpoenas served

in the above-entitled case by defendant upon Victor

Atiyeh, Governor of the State of Oregon, Lee Johnson,

Executive Assistant to the Governor, and Denny Miles,

Press Aide to the Governor, the court makes the

following

FIN DINGS OF FACT

The parties stipulated that the attendance of

Victor Atiyeh, Governor of the State of Oregon, and

Lee Johnson, Executive Assistant to the Governor,

were not necessary to the hearing m defendant's

motion to quash or, in the alternative, to dismiss the

indictments and the parties having stipulated that

Denny Miles would be made available to testify if the

defendant so requested.

CONCLUSIONS OF LAW

(1) The State of Oregon's motion to quash

the subponeas served by the defendant in the above-

entitled case upon Victor Atiyeh, Governor, and Lee

Johnson, Executive Assistant to the Governor, is

granted, and

(2) The State's motion to quash the subpoena

issued to Denny Miles, Press Aide to the Governor, is

denied, based upon the stipulation of the parties.

On defendant's motion to quash the indictments

or, in the alternative, to dismiss the indictments in

Marion County case nos. 119905, 119906, 119907 and

119908 (said motion containing seven subsections) the

court makes the following

FIN DINGS OF FACT AND CONCLUSIONS OF LAW

(l) The proceedings before the Marion

County Grand Jury were conducted by Michael D.

Schrunk, a lawfully appointed Special Assistant

Attomey General. Defendant's motion to quash the

indictments or, in the alternative, to dismiss the

indictments on this ground is denied.

(2) The court finds that former Attorney

General James A. Redden and Michael D. Schrunk did

not, either individually or jointly, make any promises

to the defendant that certain procedures would be

utilized during the investigation of the defendant. Mr.

Bruce Williams and Mr. Ralph Spooner formed an

expectation that they would be able to see a written

report to the Governor in advance of any further

proceedings against defendant Gortmaker. The court

specifically finds that the expectation of Mr. Williams

and Mr. Spooner was not the result of any express or

implied representation nor the result of any contract

or agreement made by either Attorney General James

A. Redden or Michael D. Schrunk, Special Assistant

Attorney General.

Defendant's motion to quash or, in the

alternative, to dismiss the indictments on this ground

is denied.

(3) The Grand Jury selection process was not

based upon any systematic exclusion of any persca who

knew, was acquainted with, or in any way connected

with the defendant. The defendant's motion to quash

or, in the alternative, to dismiss the indictments om

this ground is denied.

(4) Defendant was not denied due process of

law in the Grand Jury selection process and the grand

jurors were selected from a duly empaneled jury array

on order of the presiding circuit court judge of the

Marion County Circuit Court. Defendant's motion to

quash or, in the alternative, to dis miss the indictments

on this ground is denied.

(5) The Attomey General of the State of

Oregm is authorized under the Organized Crime Act

to initiate investigations of corruption of public

officers or employes (ORS 180.600). The Attorney

General of this state did not, however, undertake an

investigation of the defendant before being directed to

do so by the Governor of the State of Oregon. The

investigation was initiated only after the Attorney

General was so directed by the Governor. Defendant's

motions to quash or, in the alternative, to dismiss the

indictments on this ground is denied.

(6) Michael D. Schrunk was duly and lawfully

appointed as a Special Assistant Attomey General and

properly utilized the staff of the Attorney General's

office in investigating the defendant. The Attomey

General of the State of Oregon under either the

directive of the Governor of the State of Oregon or

under the Organized Crime Act (ORS 180.600) has the

right to use the staff and support facilities of the

Attorney General's office to further the investigation

of the defendant or any other public officer to

determine whether the public officer has violated any

law of the State of Oregon. Defendant's motion to

quash or, in the alternative, to dis miss the indictments

on this ground is denied.

(7) Michael D. Schrunk was duly and lawfully

appointed a Special Assistant Attorney General and

recommended to the Attomey General of the State of

Oregon, James M. Brown, and the Governor of the

State of Oregon that a Grand Jury be convened to

consider the charges against defendant. Defendant's

motion to quash or, in the alternative, to dismiss the

indictments mm this ground is denied.

mi.

Defendant's motion to suppress each of the

indictments, Marion County Case Numbers 119905,

119906, 119907 and 119908, is based upon the same

allegations set forth under defendant's motion to quash

the indictments or, in the alternative, to dismiss the

indictments under I-(2), supra. The court acheres to

its former ruling. Defendant's motion to suppress is

denied.

IV.

Defendant's motion to quash or, in the

alternative, dismiss or set aside the indictments in

79 “

Marion County Case Num bers 119905, 119906, 119907 and

119908 on the grounds that the Grand Jury was not

properly selected is denied. The Grand Jury was

properly selected pursuant to statute and Marion

County rules.

Defendant's motion to quash or, in the

alternative, dismiss the indictments in Marion County

Case Nos. 119905, 119906, 119907 and 119908, on the

grounds of highly prejudicial publicity is denied.

The court, after hearing testimomy and

argument, finds the pretrial publicity did not impair

the selection or the deliberations of the Marion County

Grand Jury. Defendant did not move for a change of

venue. The pretrial publicity was not such as to deny

defendant a fair trial based upon community bias or

prejudice against the defendant.

VI.

Marion County Case No. 119905 — Demurrer —

on the ground the indictment charges more than ame

crime not within the same act or transaction is

overruled.

' vo.

Marion County Case No. 119906 — Demurrer —

on the grounds that Counts IA, IB, and II of the

indictment are not definite and certain in that they

fail to specify the personal or professional services

allegedly received by the defendant and that Count IA

fails to state an offense pursuant to ORS 164.055.

Defendant's demurrer to Count IA of the

indictment is sustained on ground 2 of the demurrer.

: The demurrer in all other respects is overruled.

vil.

Marion County Case No. 119906 — Defendant's

motion to quash or, in the alternative, to dismiss the

indictment on the ground, that, as a matter of law,

defendant receive no commercial benefit from the

services allegedly obtained is denied.

IX.

Marion County Case No. 119907 — Demurrer to

Count II of the indictment on the grounds that it fails

to state an offense by not alleging the property was

entrusted to the defendant.

Defendant's demurrer to Count II of the

indictment is sustained.

Marion County Case No. 119907 — Defendant's

motion to quash or, in the alternative, to dis miss the

indictment for the reasons, (a) the item alleged to

have been unlawfully taken under Count I of the

indictment was not a firearm, (b) the item alleged to

have been umlawfully taken in Count I of the

indictment was not and is not the property of Marion

County, (c) the item allegedly entrusted and

misappropriated in Count II of the indictment was not

the property of Marion County, and (d) that no owner

suffered a detriment from its disposal of said

property. The motion to quash or, in the alternative,

to dismiss the indictment is denied.

XI.

Marion County Case No. 119908 — Demurrer —

to the indictment on the grounds that Count I of the

indictment is not within the statute of limitations and

Count II of the indictment fails to state a crime in

that it fails to allege the property was entrusted to the

defendant.

The demurrer to indictment in Marion County

Case No. 119908 is sustained.

Marion County Case No. 9908 — On

defendant's motion to quash or, in the alternative, to

dismiss the indictment m the grounds the firearm

alleged unlawfully taken in Count I of the indictment

is not a firearm and the (firearm alleged

misappropriated was not the property of Marion

County, is denied.

DATED this 24th day of October, 1980.

ay Roland K. Rodman

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.