# Petition — Gortmaker v. Oregon

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 465 U.S. 1066

## Text

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,
v.
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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SE EM n ccc ec ccccccsccccecccceccces l
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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BOGMTEE TH ccc ccc ccc ccccccccccecccccece 72

ii

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
PP tn . 6.646 ocebb be kew be ba ek eis 2
a a ann 646% 660.08 whe eeeteuuace 2,3
iv

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.

10

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

1]

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

15

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.

18

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

21

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

22

(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.

23

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

25

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

26

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

7

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

9

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

27

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

28

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

12

constitution and no _ additional legislation was

required. ORS 10.110 provides:

35

"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

36

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

38

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.

39

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

4)

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

47

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

48

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.

49

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

50

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

53

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.
10

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.

14

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.”

57
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.)

21

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 * * *."

22

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
v.
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

61

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
v.

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

63

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.

64

(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

65

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,

ee

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

66

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

67

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.

(c) Provide defendant with _ specific
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

70

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

71

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

72

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.

73

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:

I.

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

74

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.

0.

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

75

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

76

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

77

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.

78

(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.

V.

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

80

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

al

81

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.

X.

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.

82

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
IR

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1066%3A1. Public record. Not legal advice.