February 19, 2013 11:20 PM

IN THE SUPREME COURT OF THE STATE OF OREGON GARY D. HAUGEN, Plaintiff-Respondent, v. Court of Appeals No. A152412 JOHN KITZHABER, Governor of the State of Oregon, Supreme Court No. S060761 Defendant-Appellant. Marion County Circuit Court No. 12C16560

ANSWERING BRIEF ON THE MERITS OF RESPONDENT GARY D. HAUGEN Certified appeal from the Court of Appeals, upon appeal from the judgment of the Circuit Court For Marion County Honorable TIMOTHY P. ALEXANDER, Senior Judge

HARRISON LATTO (OSB #81289) Attorney at Law 1631 NE Broadway, No. 533 Portland, Oregon 97232 Telephone: (503) 223-0783 E-mail: hlatto@easystreet.net Attorney for Respondent

ELLEN F. ROSENBLUM (OSB #753239) Attorney General ANNA M. JOYCE (OSB #013112) Solicitor General JAKE J. HOGUE (OSB #123459) Assistant Attorney General 1162 Court Street NE Salem, Oregon 97301-4096 Telephone: (503) 378-4402 E-mail: anna.joyce@doj.state.or.us Attorneys for Appellant

Brief filed: February 2012 (Counsel continued following page)

BRUCE L. CAMPBELL (OSB #925377) ELISA J. DOZONO (OSB #063150) ALEXANDER M. NAITO (OSB #124046) Miller Nash LLP 3400 U.S. Bancorp Tower 111 S.W. Fifth Avenue Portland, Oregon 97204 Telephone: (503) 224-5858 E-mail: bruce.campbell@millernash.com

KEVIN DIAZ (OSB #970480) Legal Director ACLU Foundation of Oregon P.O. Box 40585 Portland, Oregon 97240 Telephone: (503) 227-6928 E-mail: kdiaz@aclu-or.org

Attorneys for Amicus Curiae ACLU of Oregon, Inc. JEFFREY ELLIS (OSB #102990) Attorney at Law 621 S.W. Morrison Street, Suite 1025 Portland, Oregon 97205 Telephone: (503) 218-7076 E-mail: jeffreyerwinellis@gmail.com Attorney for Amicus Curiae Oregon Capital Resource Center ERIN McKEE (OSB #114565) Deputy Executive Director Oregon Justice Resource Center P.O. Box 40558 Portland, Oregon 97240 Telephone: (503) 768-7321 E-mail: erin.mckee@me.com Attorney for Amicus Curiae Oregon Justice Resource Center

TABLE OF CONTENTS Statement of the Case: Questions Presented and Proposed Rules of Law. . . . . . . . . . . . . . . . . . . . . 1 Summary of Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 I. II. Procedural history. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 An act of executive clemency can be accepted, or rejected by the intended recipient.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 A. This Courts clemency decisions, like United States v. Wilson, adopt the acceptance theory without respect to the unconditional or conditional nature, or pre- or post-conviction timing of the act of clemency involved... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Defendant has not demonstrated sufficient cause for this Court to overrule its previous clemency precedents.. . . . . . . . . . . . . . . . . . 34 1. The reprieve subjects plaintiff to cruel and unusual punishment under the Eighth Amendment and the Fourteenth Amendments Due Process Clause.. . . . . . . . . . . . 38 The reprieve deprives plaintiff of his liberty interest, protected by the Due Process Clause of the Fourteenth Amendment, in his individual dignity and autonomy... . . . . . 41

B.

2.

III.

The Governors reprieve is unlawful because it exceeds the authority conferred upon him by Article V, section 14.. . . . . . . . . . . . . . . . 43 A. B. C. D. Constitutional context.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Statutory context.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Case law.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Historical practice.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

IV. V.

Resolution of the issues presented is within this courts authority.. . . . . . . 62 Conclusion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 TABLE OF AUTHORITIES Cases

Anderson v. Alexander, 191 Or 409, 229 P2d 633 (1951). . . . . . . . . . . . . . . . . . . 44 Baker v. Carr, 369 US 186, 82 S Ct 691, 7 L Ed 2d 663 (1962). . . . . . . . . . . . . . 31 Biddle v. Perovich, 274 US 480, 47 S Ct 664, 71 L Ed 1161 (1927). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 27-28, 35-37 Bollinger v. Board of Parole, 329 Or 505, 992 P2d 445 (1999). . . . . . . . . . . . . . 29 Burdick v. United States, 236 US 150, 35 S Ct 267, 59 L Ed 476 (1922). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 25-28 Carpenter v. Lord, 88 Or 128, 171 P 577 (1918). . . . . . . . . . . . . . 13-14, 17-20, 27 Commonwealth v. Lockwood, 109 Mass 323 (1887). . . . . . . . . . . . . . . . . . . . . . . 26 Eacret v. Holmes, 215 Or 121, 333 P2d 741 (1958).. . . . . . . . . . . . . . . . . . . . 63-67 Evans v. Bennett, 440 US 1301 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Ex parte Houghton, 49 Or 232, 89 P 801 (1907). . . . . . . . . . . . . . 12-13, 19, 29-30 Ex parte Hyde, 192 So 195 (Fla 1939). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 Ex parte Phillip Grossman, 267 US 87, 45 S Ct 332, 69 L Ed 527 (1925). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Ex parte William Wells, 59 US 307, 15 L Ed 421 (1856).. . . . . . . . . . . . . . . . . . . 26 Farmer v. Brennan, 511 US 825 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Farmers Insurance Company of Oregon v. Mowry, 350 Or 686, 261 P3d 1 (2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Fehl v. Martin, 155 Or 455, 64 P2d 631 (1937). . . . . . . . . . . . . . . . . . . . . . . . . . . 44 ii

Fredericks v. Gladden, 209 Or 683, 308 P2d 613 (1957). . . . . . . . . . . . . . . . . . . 18 Fredericks v. Gladden, 211 Or 312, 315 P2d 1010 (1957). . . . . . . . . . . . . . . 16-18 Furman v. Georgia, 408 US 238 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Gregg v. Georgia, 428 US 153 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 In re Medley, 134 US 160 (1890). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 In re Petition of Dortmitzer, 119 Or 336, 249 P 639 (1926). . . . . . . . 15-16, 19, 29 Graham v. Florida, 130 S Ct 2011 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Halparin v. Halperin, 352 Or 482, 287 P3d 1069 (2012). . . . . . . . . . . . . . . . . . . 18 Johnson v. Bredesen, 130 S Ct 541 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Lackey v. Texas, 514 US 1045 (1995).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Lenhard ex rel. Bishop v. Wolff, 603 F2d 91 (9th Cir 1979). . . . . . . . . . . . . . . . . . 41 Lenhard v. Wolff, 443 US 1306 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 MacPherson v. Department of Administrative Services, 340 Or 117, 130 P3d 308 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47-48 Marbury v. Madison, 5 US 137 (1803). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 McCarthy v. Hoan, 221 Wis 344, 266 NW 916 (1936). . . . . . . . . . . . . . . . . . . . . 63 Miller v. Alabama, 132 S Ct 2455 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S Ct 2566 (2012).. . . . . . . . . . . . . . . . 60 Outdoor Media Dimensions Incorporated v. State of Oregon, 331 Or 634, 20 P3d 180 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Palka v. Walker, 198 A 265 (Conn 1938).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 People v. Anderson, 493 P2d 880 (Cal 1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Priest v. Pearce, 314 Or 411, 840 P2d 65 (1992).. . . . . . . . . . . . . . . . . . . . . . . . . 45 iii

Rico Villalobos v. Giusto, 339 Or 197, 118 P3d 246 (2005). . . . . . . . . . . . . . . . . 45 Roper v. Simmons, 543 US 551 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 State v. Ciancanelli, 339 Or 282, 121 P3d 613 (2005).. . . . . . . . . . . . . . . . . . . . . 35 State ex Rel Oregonian Pub. Co. v. Deiz, 289 Or 277, 613 P2d 23 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 State ex rel Ricco v. Biggs, 198 Or 413, 255 P2d 1055 (1953). . . . . . . . . . . . . . . 65 State v. Counts, 311 Or 616, 816 P2d 1157 (1991). . . . . . . . . . . . . . . . . . . . . . . . 65 State v. Finch, 54 Or 482, 103 P 505 (1909). . . . . . . . . . . . . . . . . . . . . . . 46, 52-54 State v. Garrand, 5 Or 156 (1874). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 State v. Garrand, 5 Or 216 (1874). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 State v. Haugen, 349 Or 174, 243 P3d 31 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . 6 State v. Haugen, 351 Or 325, 266 P3d 68 (2011). . . . . . . . . . . . . . . . . . . . . . . . . 6-7 State v. Hawk, 47 W Va 434, 34 SE 918 (1900).. . . . . . . . . . . . . . . . . . . . . . . . . . 15 State v. Hirsch, 338 Or 622, 114 P3d 1104 (2005).. . . . . . . . . . . . . . . . . . . . . . . . 46 Strunk v. PERB, 338 Or 145, 108 P3d 1058 (2005). . . . . . . . . . . . . . . . . . . . . . . . 64 Suffolk County District Attorney v. Watson, 411 NE 2d 1274 (Mass 1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 United States v. Wilson, 32 US 150, 8 L Ed 640 (1833).. . . . . . . . . . . . . . . . passim Valle v. Florida, 132 S Ct 1 (2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Statutes and Constitutional Provisions Due Process Clause (US Const, Amend XIV). . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 The Codes and General Laws of Oregon, Crim Proc, Chap XXII, 1422, 1440, 1441 (Hill 1887).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 iv

General Laws of Oregon, Crim Code, Ch XXXIII, 335, 336 (Deady 1845-1864). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Or Const, Art I, 22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46-48 Or Const,Art I, 15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Or Const, Art I, 40. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Or Const, Art V, 10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Or Const, Art V, 14. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Or Const, Art VII (amended), 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64, 66 Or Const, Art VII (original), 9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 Or Laws 1955, ch 505, 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Or Laws 1965, ch 616, 91. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Or Laws 1995, ch 805, 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 ORS 127.800 to 127.897 (Death With Dignity Act). . . . . . . . . . . . . . . . . . . . . . 41 ORS 137.463 to 137.482. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 ORS 137.463. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 ORS 137.463(5).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 ORS 137.473. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 ORS 137.478. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 ORS 144.660. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 ORS 421.120(1953).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 ORS 421.120(1)(1955). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 US Const, Art II, 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30-31 US Const, Amend VIII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 v

Other Authorities AM JUR, Pardons. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 Ballentines Law Dictionary (3d ed 1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 53 Biennial Message of Gov. L. F. Grover (State Printing Office 1876). . . . . . . . . . 57 Biennial Message of Gov. W. W. Thayer to the Legislative Assembly (State Printing Office). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 William Blackstone, Commentaries on the Laws of England. . . . . . . . . . . . . 24, 55 John H. Blume, Killing the Willing: Volunteers, Suicide and Competency, 103 MICH. L. REV. 939 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Richard J. Bonnie, The Dignity of the Condemned, 74 VA. L. REV. 1363 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 G. Sidney Buchanan, The Nature of a Pardon Under the United States Constitution, 39 OHIO STATE L J 36 (1978). . . . . . . . . . . . . . . . . . . . . . . . . 28 Corpus Juris Secundum, Pardons and Parole, 33. . . . . . . . . . . . . . . . . . . . . . . . 54 Oregon Executive Department Records 1859-1874. . . . . . . . . . . . . . . . . . . . . . . . 57 W. H. Humbert, The Pardoning Power of the President (American Council on Public Affairs 1941).. . . . . . . . . . . . . . . . . . . . . . . . 54 David Jenkins, Eight Centuries of Reports. . . . . . . . . . . . . . . . . . . . . . . . . . . . 31-34 The Federalist, No. 74 (Hamilton). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 William R. Long, A Tortured History: The Story of Capital Punishment in Oregon (Or Crim Defense Lawyers Assn 2001).. . . . . . . . . . . . . . . 57-58 Pardons, Remissions and Commutation of Sentence (Multiple Volumes, Oregon State Printing Office). . . . . . . . . . . . . . . . 59-60 Plato, Apology. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 William Shakespeare, The Merchant of Venice. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 vi

RESPONDENTS ANSWERING BRIEF STATEMENT OF THE CASE Plaintiff accepts defendants statement of the case, except that he provides a more comprehensive summary of facts, and different questions presented and proposed rules of law.1 First Question Presented Does a governors act of clemency granted under Article V, section 14 of the Oregon Constitution have to be accepted by the intended recipient to be effective? Proposed Rule of Law Yes. This Courts case law already so holds, and defendant has not made a showing sufficient for this Court to overrule its existing, long-standing precedents. Second Question Presented Is Governor Kitzhabers ostensible reprieve granted to plaintiff within his power under Article V, section 14? Proposed Rule of Law No. A reprieve as used in that section has a fairly precise meaning, and placed in context with other constitutional provisions, was not intended to

This Courts rules are somewhat unclear regarding the proper format for briefs in this Court upon an appeal certified from the Court of Appeals. For example, appellants brief contains no assignment of error. Plaintiff follows defendants lead, and this brief contains only an argument, rather than a response to a nonexistent assignment of error, and includes within that heading a right for the wrong reason claim that ordinarily would follow a cross-assignment of error.

2 authorize the governor to use a reprieve to effect a suspension of certain laws about which he has misgivings. SUMMARY OF ARGUMENT The quality of mercy is not strained, explains Portia to Shylock in The Merchant of Venice (Act IV, sc 1), but droppeth as the gentle rain from heaven. Although Portia is answering Shylock when he asks why he should show mercy to Antonio instead of demanding strict compliance with the terms of his contract, her description is apt here as well. Any grant of executive clemency is an act of mercy, but under Governor Kitzhabers conception of mercy, it can be strained by forcing it upon someone who does not want it. But an act of mercy, or of grace or favor, as this Court has described executive clemency, is in its essence something desired by the recipient; and so, as Portia continues, it is twice blessed; it blesseth him that gives and him that takes. Portia later states the obvious, which is that we do pray for mercy.2 Something undesired is not mercy at all, but something else. Mercy cannot be forced upon someone any more than a gift can be, and what one person considers to be a benefit, another might consider to be an injury. A purported act of benevolence that can be forced upon someone who does not want it is a contradiction not only in terms, but of concepts. Here, Mr. Haugen considers Governor Kitzhabers action, as well-intentioned as it might be, to be In the play, Antonio has not been sentenced to death, but has only borrowed money from Shylock under unusual terms, and the act of mercy Portia urges upon Shylock is something that Antonio dearly wants.
2

3 profoundly dehumanizing and cruel. It makes him an unwilling pawn in the Governors desire to allow Oregonians to engage in a debate over the death penalty, even though nothing has impeded them from engaging in that debate ever since they overwhelmingly voted to establish the death penalty nearly 30 years ago. Because Governor Kitzhaber obviously cannot determine whether his successor as Governor will continue the moratorium he has imposed, Mr. Haugen could be put to death by lethal injection as soon as Governor Kitzhaber leaves office. That might occur only after a wait of about seven years, if Governor Kitzhaber seeks, and is re-elected to a second four-year term, or could happen at any time, if Governor Kitzhaber were to leave office unexpectedly, because of his death, incapacity, resignation, recall, or removal from office. The ostensible reprieve therefore makes plaintiff live for up to seven years under an awful pall of uncertainty regarding whether, and when he will be put to death. That is not something Mr. Haugen wants, and not something he sought. By rejecting the reprieve, plaintiff is not claiming any power to force the state to execute him, as defendant puts it. (App Br 5).3 Similarly, it is sophistry to say, as Governor Kitzhaber did in declaring his moratorium, that [t]he only factor that determines whether someone sentenced to death in Oregon is actually executed is that they [sic] volunteer. (Supp ER-10). Rather, plaintiffs choice was an entirely a passive one, in choosing not to spend ten or fifteen years on death row pursuing

Defendants amici put it even more tendentiously, saying that plaintiff claims the power to force the State to kill him. (Amicus Br 11).

4 legal challenges to his conviction or sentence, with uncertain chances of success, and when success in any case merely results often only in a new penalty-phase trial. If plaintiff is executed, it would not be by plaintiffs will, but rather something demanded by the judgment of a jury and a court, acting according to controlling statutes and as twice affirmed by this Court. This conception of executive clemency is not only plaintiffs, but this Courts as well. In multiple decisions handed down over a period of several decades, this Court has agreed that it is in the nature of executive clemency under the Oregon Constitution that it is something that is ineffective unless accepted by the intended recipient. Although Governor Kitzhaber asserts that case law establishes that acceptance is not required (App Br 2), the single decision he cites supporting that assertion is a 800-year old, English decision that was explicitly disavowed in the decision of the United States Supreme Court that this Court has adopted in construing the state analogue to the federal clemency power. This Courts four decisions addressing this issue, to which Governor Kitzhabers brief devotes only cursory treatment, all either hold, or refer approvingly to the idea that an act of clemency is ineffective unless accepted by the intended recipient. Defendant has made an inadequate case for the overruling of those precedents, especially when this particular reprieve would require plaintiff simply to stand by for an uncertain period of time lasting up to seven years, after which he will find out whether or not he will be put to death. If the acceptance theory

5 of clemency applies only to conditional grants, that is a condition that inheres in the reprieve because of its unusual nature, and entitles him to reject it. Of course, Governor Kitzhabers ostensible reprieve is not actually an act of mercy at all. According to his own pronouncement, he granted the reprieve because he is morally opposed to the death penalty. Accordingly, his reprieve if for his own purposes, and not for plaintiffs benefit. But if substance, rather than form is to control, the reprieve is ineffective to halt plaintiffs execution for a second, independent reason, that defendant has chosen to ignore in his brief. Governor Kitzhabers act merely carries the label of reprieve; in actuality it is something else entirely. A reprieve had, at the time the Oregon Constitution was adopted and long before that, a fairly precise meaning. Its function is never to annul a sentence, but only to delay its execution, so that certain circumstances existing at the time of a scheduled execution, that would make its immediate carrying out inhumane or unjust, can pass, so that the execution can then be carried out. Because traditionally a death sentence was required by law be carried out only two days after its imposition, reprieves were often granted in order to allow a prisoner to take certain actions, such as an appeal or application for a pardon, that would be rendered moot unless the carrying out of his sentence was reprieved. In order to effectuate that function of only temporarily delaying a sentence, a reprieve by its nature lasts for a specified, definite period of time. Indeed, Governor Kitzhabers ostensible reprieve is completely unprecedented in

6 this aspect, because of the 120 other reprieves Oregon governors have issued since Statehood, every one of them has carried an expiration date. Historical practice, case law, and constitutional and statutory context of the constitutional provision involved, strongly support this conception of a reprieve. Governor Kitzhabers ostensible reprieve merely carries that label. In actuality it is an attempt to suspend or nullify the operation of certain laws about which Governor Kitzhaber has moral and other qualms, masquerading as a reprieve. ARGUMENT This brief first provides a more complete summary of the facts, which are undisputed, than is contained in the defendants brief. It then discusses why, for either of the two reasons just described, Governor Kitzhabers ostensible reprieve is legally ineffective to halt plaintiffs execution. I. Procedural history. Plaintiff Gary D. Haugen was convicted in 2007 of committing aggravated murder by killing a fellow inmate at the Oregon State Penitentiary. Upon automatic, direct appeal this Court affirmed his conviction and sentence. State v. Haugen, 349 Or 174, 243 P3d 31 (2010). In 2003, when he committed the murder for which he was sentenced to death, Mr. Haugen had already been an inmate at the Oregon State Penitentiary for more than 20 years, serving a life sentence for another murder conviction, in 1981. Haugen, 349 Or at 176. The proceedings conducted after that are described in State v. Haugen, 351 Or 325, 266 P3d 68 (2011). After his conviction was affirmed, Mr. Haugen

7 announced publically that he would decline to pursue collateral challenges to his conviction or sentence. The trial court conducted a death-warrant hearing, pursuant to ORS 137.463. This Court issued an alternative writ of mandamus directing the trial court to conduct additional proceedings concerning plaintiffs mental competence. The trial court did so, and this Court dismissed the alternative writ. The trial court, after determining that Mr. Haugen was competent, issued a death warrant on November 18, 2011, directing that Mr. Haugen be executed on December 6, 2011. This Court then considered, but rejected a second challenge to the procedures used by the trial court for its inquiry into the subject of plaintiffs competence, holding that the trial court had complied both with the alternative writ of mandamus, and the applicable statutes. Haugen, 351 Or at 335-44. On November 22, 2011, the day after this Court issued its opinion, Governor Kitzhaber granted to Mr. Haugen what he labeled a temporary reprieve. By its terms, the reprieve will last as long as the duration of Governor Kitzhabers service as Governor. The reprieve also states that the Governor granted it for the reason that Oregons application of the death penalty is not fairly and consistently applied, and I do not believe that state-sponsored executions bring justice. (Supp ER-9).4

There are several defects in defendants excerpt of record. It includes a copy of the initial, rather than amended (and operational) complaint, and omits two out of three documents that were attached to both versions; it also omits his own answer, and the judgment. This brief provides a complete, supplemental excerpt of record.

8 At the same time he granted the reprieve to Mr. Haugen, Governor Kitzhaber declared a general moratorium upon executions while he serves as Governor.5 In his statement explaining the moratorium, Governor Kitzhaber, noting that during his prior service as Governor he had permitted two condemned prisoners to be executed, stated that he simply cannot participate once again in something I believe to be morally wrong. Governor Kitzhaber referred to the pursuit of legal challenges to their sentences by death-row inmates as a broken system, stating that the other 36 death-row inmates all have many years and appeals left before there is even a remote possibility of carrying out their death sentence, so that the only factor that determines whether someone sentenced to death in Oregon is actually executed is that they volunteer. The Governor also stated that he could have commuted Mr. Haugens sentence and indeed the sentences of all those on death row to life in prison without the possibility of parole, but that he did not do so because the policy of this state on capital punishment is not mine alone to decide. It is a matter for all Oregonians to decide. He stated that it was his hope and intention that his action would bring about a long overdue reevaluation by Oregon citizens of our current policy and our system of capital punishment, and he called on the legislature to bring potential reforms before the 2013 legislative session and encourage all Oregonians to A copy of the Governors statement was attached to the amended complaint, but is omitted from defendants excerpt of record. It is set forth at Supp ER-10. The statement is also available on the Governors official website, at: http://www.oregon.gov/gov/media_room/pages/press_releasesp2011/press_11221 1.aspx.
5

9 engage in the long overdue debate that this important issue deserves.6 On March 12, 2012, plaintiff delivered a letter to the Governor, in which he stated that he refused the reprieve the Governor had offered to him, and also filed a motion in the criminal action asking that either another death warrant be issued, or a death-warrant hearing be conducted. Acting on behalf the State of Oregon, the plaintiff in the criminal case, the District Attorney For Marion County filed a response in which he agreed with Mr. Haugen that his rejection of the reprieve made it ineffective to halt his execution. Governor Kitzhaber was permitted to intervene as a party in the criminal case, and opposed the motion. Mr. Haugen then filed this action for a declaratory judgment. Proceedings in the criminal case were stayed pending the outcome of this case, and Governor Kitzhaber was permitted to withdraw as a party in the criminal case. (Supp ER-32). The parties have agreed that the outcome of this action will determine the further course of events in the criminal case. In his amended complaint for a declaratory judgment, plaintiff asserted that Governor Kitzhabers ostensible reprieve was ineffective to halt his execution for either of two reasons: because a reprieve to be effective has to be accepted by the On December 5, 2011, a lawyer purporting to act on plaintiffs behalf filed a copy of the reprieve in plaintiffs criminal case, without any accompanying comment or pleading. At the same time as his motion for re-issuance of a death warrant, plaintiff also filed a motion to quash the filing of the reprieve, on the basis that the filing was without his knowledge or consent, and without service upon him as required by statute. Neither the District Attorney nor the Governor opposed that motion, and on April 25, 2012, the trial court entered an order declaring that the filing of the reprieve was quashed and annulled, and null and void and with no legal effect. (Supp ER-31).
6

10 intended recipient; and because the reprieve, although it carried that label, was not actually a reprieve, because it did not last for a definite period of time, and because it was issued not for the purpose of allowing certain circumstances to pass, but as an attempted nullification of certain laws. (Supp ER-5 - 7). The trial court issued an opinion on August 3, 2012, holding that under Oregon law a reprieve was ineffective unless accepted by the recipient. (App Br, ER-3).7 The trial court entered a judgment declaring that the reprieve was ineffective to halt plaintiffs execution, for the reason that, to be effective, a reprieve must be accepted by the recipient, and plaintiff has rejected the reprieve. The judgment further stated that it would control further proceedings in the related criminal action. (Supp ER-5). The judgment was stayed pending this appeal. II. An act of executive clemency can be accepted, or rejected by the intended recipient. The first question presented is whether the trial court was correct in concluding that the Governor lacks power under the Oregon Constitution to force an unconditional grant of clemency upon an recipient who does not accept it, and that accordingly, Governor Kitzhabers reprieve is ineffective to halt Mr. Haugens execution. On the issue of whether an intended recipient of an act of clemency is entitled to reject, or accept it, there are two competing theories. The acceptance

Although the trial court stated that it need not reach the remaining allegations in the complaint, it also held that there was no requirement that a reprieve specify a particular date that it expires. (Supp ER-3).

11 theory was adopted by the United States Supreme Court, in an opinion authored by Chief Justice Marshall, in United States v. Wilson, 32 US 150,, 8 L Ed 640 (1833), and followed nearly ninety years later in Burdick v. United States, 236 US 150, 35 S Ct 267, 59 L Ed 476 (1922). A few years after that, however, the United States Supreme Court did an about-face and adopted the public welfare theory of clemency, in an opinion authored by Justice Holmes. Biddle v. Perovich, 274 US 480, 47 S Ct 664, 71 L Ed 1161 (1927). This Court does not come freshly to this battle of the legal titans, however. In four decisions, spanning five decades, it has adopted or referred approvingly to the acceptance theory. Two of the decisions quote approvingly from Chief Justice Marshalls opinion in Wilson. Moreover, the last of the four decisions and one of the two that quotes approvingly from Wilson came after the United States Supreme Courts did its about-face and adopted the public welfare theory, in Biddle. Defendant thus bears the burden of showing why this Court should now overrule its prior decisions and adopt a new theory of executive clemency. Accordingly, this brief first provides a comprehensive discussion of this Courts four decisions regarding acceptance of clemency. Because the parties disagree about the meaning and analysis of the United States Supreme Courts decision in Wilson, the brief also provides an especially detailed and comprehensive discussion of that leading case. It then argues that, for several

reasons, this case would be an especially inappropriate vehicle for overruling this

12 Courts prior adoption of the acceptance theory. A. This Courts clemency decisions, like United States v. Wilson, adopt the acceptance theory without respect to the unconditional or conditional nature, or pre- or post-conviction timing of the act of clemency involved.

The Governors clemency power granted by Article V, section 14 of the Oregon Constitution, unchanged since the constitutions adoption 1857, is as follows: [The Governor] shall have power to grant reprieves, commutations, and pardons, after conviction, for all offences [sic] except treason, subject to such regulations as may be provided by law. Upon conviction for treason he shall have power to suspend the execution of the sentence until the case shall be reported to the Legislative Assembly, at its next meeting, when the Legislative Assembly shall either grant a pardon, commute the sentence, direct the execution of the sentence, or grant a farther [sic] reprieve. He shall have power to remit fines, and forfeitures, under such regulations as may be prescribed by law; and shall report to the Legislative Assembly at its next meeting each case of reprieve, commutation, or pardon granted, and the reasons for granting the same; and also the names of all persons in whose favor remission of fines, and forfeitures shall have been made, and the several amounts remitted[.] Or Const, Art V 14. In Ex parte Houghton, 49 Or 232, 89 P 801 (1907), the Governor commuted an inmates sentence to time served, conditioned upon the inmates obedience to the laws after his release. A few months after his release the inmate was arrested upon an order from the Governor, and returned to prison, upon the Governors determination that the inmate had violated city ordinances. The inmate argued that: (1) because the Governors power under the Constitution did not extend to

13 granting conditional commutations or pardons, that aspect of the commutation was void; and that (2) he could only be returned to prison through a judicial proceeding. Regarding the first claim, this Court stated: The commutation was an act of grace or favor, and [the inmate] was not obliged to accept it unless he so desired. He might have refused it, and served out his sentence as originally imposed, but chose to accept the conditional commutation, and in doing so stipulated that for a violation of the conditions he might be summarily arrested by order of the Governor and remanded to the penitentiary to serve the remainder of his original sentence. There is nothing unlawful or illegal in such an agreement, and no reason why it should not be enforced in the manner stipulated. Houghton, 49 Or at 234 (emphasis added). This passage may be construed in two different ways. On the one hand its meaning could be limited to the idea that a conditional commutation may be accepted or rejected by the person to whom it is offered, but only because he may prefer to serve his sentence rather than obey the conditions that come attached to the offer of clemency. On the other hand, the court also stated that a commutation was an act of grace or favor, and that the person to whom it was offered was not obliged to accept it unless he so desired. That sentence is not qualified in any way or limited to conditional, as opposed to unconditional acts of clemency. This Court later reiterated what might be called the acceptance conception of executive clemency, in Carpenter v. Lord, 88 Or 128, 171 P 577 (1918). Again, the court did not distinguish between conditional, and unconditional pardons, stating that the Governor may pardon an offender by virtue of his constitutional power in that behalf, but even that is not effective unless it is accepted by the

14 prisoner to whom the pardon is offered. Carpenter, 88 Or at 137 (emphasis added). This Court then quoted from an early opinion of the United States Supreme Court authored by Chief Justice Marshall, as follows: A pardon is a deed, to the validity of which, delivery is essential, and delivery is not complete, without acceptance. It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him. Carpenter, 88 Or at 137, quoting United States v. Wilson, 32 US 150, 161, 8 L Ed 640 (1833). Again here, the courts statements are unqualified, and do not refer to any conditional or unconditional nature of the pardon. Thus, a pardon is only offered or tendered by the Governor to a prisoner, and cannot be forced on him. Of course, in the wide majority of cases, the issue of whether acceptance is required will never arise, for the reason that acts of clemency are usually sought by convicted defendants, and issued by the executive authority only in response to an application. Here, plaintiff did not pursue the reprieve offered by the Governor the Governor acted, apparently, in response to the petition of third parties and under Carpenter v. Lord, a pardon is only effective upon acceptance. Under Houghton and Carpenter, an act of clemency by the Governor is effective only upon acceptance; this one has been rejected, rather than accepted; and therefore, it is ineffective to halt Mr. Haugens execution. There is no basis for distinguishing pardons, addressed in Carpenter v. Lord, and commutations, addressed in Houghton, from other acts of clemency, such as reprieves or remissions of fines. In any case, this Court has also adopted

15 the acceptance theory in the case of a reprieve. In In re Petition of Dortmitzer, 119 Or 336, 249 P 639 (1926), a defendant who had been sentenced to six months in jail was granted a six-month reprieve by the Governor and released, after he had served a portion of his sentence. The reprieve was granted on the condition that the defendant obey the laws. About a month before the reprieve was to expire, the Governor revoked it on the basis that the defendant had violated that condition, and the defendant was returned to custody. He petitioned for a writ of habeas corpus, on the basis that the clemency he had received, in actuality was an unconditional pardon. Dormitzer, 119 Or at 338. In rejecting that claim, this Court distinguished between reprieves and pardons, stating that a reprieve is the withdrawing of a sentence for an interval of time whereby the execution is suspended, Id. at 339 (emphasis added), quoting 29 Cyc 1561. This Court held that, although in its restricted or technical application a reprieve applied only to a death sentence, id. a reprieve could also be granted with respect to a sentence other than death. As support for that, this Court cited a decision of the West Virginia Supreme Court, which defined the power to issue a reprieve as the power to suspend the sentence until the matter can be inquired into and determined. Id. (emphasis added), quoting State v. Hawk, 47 W Va 434, 435, 34 SE 918 (1900). This Court in Dormitzer found it unnecessary to decide whether a reprieve in a non-capital case was within the Governors power, because if it was not, then his act was a nullity, so that the released inmate was lawfully reincarcerated, and

16 if it was within the Governors power to grant the reprieve on condition, he also had the right to revoke it. 119 Or at 340. For present purposes, the important part of this Courts opinion was when it responded to an argument that the Governors suspension of the jail sentence of the incarcerated person, Edmunson, operated to deprive him of the right to appeal. This Court answered, Edmunson had the right to accept or reject the reprieve, and therefore was not prevented from appealing. Id. Finally, in Fredericks v. Gladden, 211 Or 312, 315 P2d 1010 (1957), this Court again adopted Wilsons acceptance theory of clemency. A significant aspect of Fredericks is that the case was decided after the United States Supreme Court, in 1927, reversed course and, in place of the acceptance theory, adopted a public welfare theory of executive clemency. In Fredericks, a prisoner was released by mistake, when prison officials used an incorrect method for calculating the reductions to his sentence the prisoner had earned through good behavior while incarcerated. When the mistake was discovered, the prisoner was arrested and returned to prison. He sought his release through a writ of habeas corpus. At the time, the Governor played a role in awarding good-time credits to a prisoner. The controlling statute provided that, for appropriate behavior, a prisoner shall be entitled, upon the order of the Governor, to a deduction from the term of his sentence, to be computed as follows

17 * * *. ORS 421.120(1)(1955)(emphasis added).8 Because the Governor appeared to exercise discretion under that statute, the prisoner contended that, when he was released from prison, it was actually pursuant to the Governors constitutional authority to commute sentences, which commutation could not be revoked. In the course of rejecting that argument, this Court referred to the Governors clemency authority, and to the fact that it was limited by the recipients power to reject a pardon, by quoting from its prior decision in Carpenter v. Lord, and that decisions quotation in turn from Wilson and other, secondary authorities, as follows: * * * It is true that the Governor may pardon an offender by virtue of his constitutional power in that behalf, but even that is not effective unless it is accepted by the prisoner to whom the pardon is offered. As said by Mr. Chief Justice Marshall in United States v. Wilson, 32 U.S. 150, 7 Pet.150 (8 L. Ed. 640): A pardon is a deed, to the validity of which, delivery is essential, and delivery is not complete, without acceptance. It my then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him. And see, 67 CJS 574, Pardons, 10b; and 39 Am Jur 546, Pardon, Reprieve and Amnesty, 45, 46, 47. Fredericks, 211 Or at 323 (courts ellipsis). Governor Kitzhaber asserts that this Courts citation of Carpenter and

The statute had recently been amended, in 1955 (Or Laws 1955, ch 505, 1). Before the amendment, the Governor had not been involved; rather, a prisoner was entitled to a reduction to his sentence simply upon the recommendation of the warden. ORS 421.120(1953). Likewise, in the present version of the statute, the Department of Corrections calculates and applies good-time credits; the Governor plays no part.

18 Wilson in Fredericks is non-binding dictum. (App Br 25 n 10). But it was not dictum, which is a statement that is not necessary to the decision, Halperin v. Pitts, 352 Or 482, 492, 287 P3d 1069 (2012). Rather, this Courts reference in Fredericks to the acceptance theory is an essential element of it ratio decidendi by which it rejected the prisoners contention that his sentence had been unconditionally commuted. The essential basis of this Courts holding in Fredericks was that the terms of the Oregon good behavior statute were written by implication into the sentence imposed upon the prisoner by the court. Fredericks, 211 Or at 324. From todays perspective, that seems uncontroversial. However, this Courts decision was issued upon a petition for rehearing, after it had earlier reached the opposite conclusion. Fredericks v. Gladden, 209 Or 683, 308 P2d 613 (1957). Probably for that reason, the new majority took pains to answer each and every argument that the original majority, now authors of a dissenting opinion, made. Part of the argument of the two dissenting justices was that the Governor possessed a complete power of clemency, so that the Legislative Assembly could neither enlarge that power, nor exercise any additional overlapping or duplicative power. Fredericks, 211 Or at 328 (McAllister, J., dissenting). The most probable reason for the majoritys reference to this Courts earlier adoption of the acceptance theory in Carpenter was that it deflected that idea, by showing that the Governors clemency power was not complete, but instead was subject to the limitation that it could be exercised only if the offered clemency was

19 accepted by the recipient. Again, the Governor will argue that only a conditional reprieve must be accepted to be effective. It is true that, if an act of clemency comes conditioned upon an inmate adhering to certain requirements, it makes sense that the inmate should have the choice of either accepting the clemency and adhering to the conditions that come along with it, or, because the attached condition might be more onerous to him than the sentence being served, rejecting it. Moreover, the reprieve addressed in Dormitzer was a conditional one, its condition being that the defendant obey the laws. For two reasons, this court should reject any contention that the acceptance theory applies only in the case of conditional acts of clemency. First, there is no indication in the case law just cited, or in the federal Wilson case upon which the Oregon Supreme Court relied, that the acceptance theory applies only to conditional grants of clemency. To the contrary, the Supreme Court in all three cases Houghton, Carpenter, and Dormitzer stated simply, without qualification, that pardons, commutations, and reprieves could be accepted or rejected by the person to whom they are offered because they are acts of grace, not because they might involve certain conditions. To force something upon someone who does not want it is not an act of grace or favor, which suggests something motivated by good will toward the intended beneficiary; an act of benevolence that the recipient does not want is simply a contradiction in terms. Second, the unusual nature of the temporary reprieve offered by Governor

20 Kitzhaber carries its own, inherent conditions, that Mr. Haugen, who considers complying with them to be more onerous than the alternative, should be free either to adhere to, or reject. Neither does United States v. Wilson, the decision of the United States Supreme Court upon which the Oregon Supreme Court relied in Carpenter, make its acceptance theory dependant upon the conditional, or unconditional nature of the pardon. And, a later decision of the United States Supreme Court makes clear, if there was any uncertainty, that the acceptance concept adopted in Wilson does apply to unconditional pardons. Because this Court has relied twice on Wilson in adopting the acceptance theory, and because Governor Kitzhaber attempts to distinguish Wilson on the spurious basis that it involved a pre-conviction pardon (when in fact it involved a post-conviction one), that decision, and a later decision of the United States Supreme Court applying and explaining it, warrant the following comprehensive and detailed discussion. In Wilson, the defendant George Wilson was charged in federal court, jointly with a co-defendant Porter, in six separate indictments with six offenses, all stemming from two robberies of carriers taking mail from Philadelphia to two other places in Pennsylvania. The three pairs of charges were closely related, alleging that with respect to the robbery of the Kimberton mail, on November 26, 1829, and of the Reading mail, on December 6, 1829, each defendant committed: (1) obstructing the United States mail; (2) robbery of the mail; and (3) robbery of

21 the mail and putting the carriers life in danger.9 Unlike under contemporary practice, in which all of these charges would be tried together, the two defendants were tried first upon the most serious of the charges, which was robbery of the Reading mail and putting the carriers life in danger. Both defendants were convicted, and about a month later, on May 27, 1830, were sentenced to death. The co-defendant Porter was later hanged. Wilson, on the same day he was sentenced to death on this one charge, changed his pleas to guilty on the remaining four charges against him. President Andrew Jackson, on June 14, 1830 that is, after Wilson had been convicted and sentenced to death on one charge, and pleaded guilty to the others granted a pardon to Wilson, limited to the conviction upon which he had already been sentenced to death, for the stated reason that Wilson had been recommended as deserving of having his death sentence remitted, and because the convictions on the other charges, to which he had already pleaded guilty, would likely result in lengthy imprisonment. The pardon stipulated that it did not extend to any of the other convictions; that was not a condition, but only clarified that the pardon erased only one of several, related convictions.10
9

Another charge robbery of the mail and wounding the carrier was presented to the grand jury against both defendants, but were returned as not true bills in part, after which the prosecutor declined to prosecute further on those charges. The prosecutor also declined to prosecute on the charge of robbery of the Kimberton mail and putting the carriers life in jeopardy, leaving five charges against each defendant.
10

The pardon is quoted verbatim, and in full, in the portion of the report of the (continued...)

22 When one of the other charges came before the circuit court, upon the motion of the district attorney for imposition of sentence, the court inquired regarding the effect of the pardon, understood to have been granted by the president of the United States since the conviction on this indictment, inasmuch as the charges were closely related. 32 US at 158 (emphasis added). In response, the defendant stated that he waived and declined any advantage or protection which might be supposed to arise from the pardon. Id. Apparently out of an abundance of caution, and because two of the remaining charges arose from the same criminal incident, the prosecutor presented two questions: whether Wilson could derive any benefit from the pardon on the other charges, when the pardon was restricted to the conviction upon which Wilson had been sentenced to death, and whether Wilson could derive any benefit from the pardon without bringing the same judicially before the court. 32 US at 158. The circuit-court judges were (...continued) case describing its procedural history. The pardon begins by reciting, Whereas a certain George Wilson has been convicted before the circuit court of the United States for the eastern district of Pennsylvania, of the crime of robbing the mail of the United States, and has been sentenced by the said court to suffer the penalty of death of the 2d day of July next; and whereas the said George Wilson has bee recommended as a fit subject for the exercise of executive clemency by a numerous and respectable body of petitioners, praying for him a remission of the sentence of death, inasmuch as, in such a case, sentence of imprisonment for twenty years may yet be pronounced against him on the indictments to which he has pleaded guilty * * *. 32 US at 153 (emphasis added). The operative part states, Now, therefore, I, Andrew Jackson, President of the United States * * * have pardoned, and do hereby pardon the said George Wilson the crime for which he has been sentenced to suffer death, remitting the penalty aforesaid, with this express stipulation, that this pardon shall not extend to any judgment which may be had or obtained against him, in any other case or cases now pending before said court for other offences wherewith he may stand charged. Id.
10

23 divided on these points, and so ordered the case certified to the Supreme Court. Id at 159. The Supreme Court stated the issue presented as being whether a pardon of the great offence, excluding the less, necessarily comprehends the less, against its own express terms. Id. at 160. It continued that, although that question would not be a difficult one to answer, it was unnecessary to discuss or decide it, for the reason that the pardon had never been brought before the court and pleaded as a bar. Id. at 160. The pardon could not be judicially noticed, but like any other private deed, had to be brought before the court by plea, motion or otherwise, before it could have any effect. The pardon was the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the court. The defendant had not pleaded the pardon as a bar, and therefore it could not be considered. The court considered the pardon to be like any other fact, that had to be brought before the court. One of the reasons a pardoned person might decline to bring a pardon before the court, the Supreme Court stated, was that it might be rejected by the person to whom it is tendered, and that if it be rejected, we have discovered no power in a court to force it on him. Answering the possible objection that nobody condemned to death would refuse a pardon, it said that the rule must be the same in capital cases and in misdemeanors. All at 32 US at 161 (emphasis added).

24 Although the court continued that the pardon may be conditional; and the condition may be more objectionable than the punishment inflicted by the judgment, that was only an additional reason why the private act of a pardon had to be brought before the court by the pardonee to be effective that is, because of the varied nature of acts of clemency and does not limit the courts broad rule to conditional pardons. That is shown not only by the fact that the pardon at issue was an unconditional one, but also by the courts immediately following paragraph: The pardon may possibly apply to a different person or a different crime. It may be absolute or conditional. It may be controverted by the prosecutor, and must be expounded by the court. These circumstances combine to show that this like any other deed, ought to be brought judicially before the court by plea, motion or otherwise. Wilson, 32 US at 161 (quotation marks omitted). Thus, the acceptance theory applied regardless of whether the pardon was absolute or conditional; the variety that acts of clemency might take was only an additional reason for the courts rule that the pardon had to be pleaded, inasmuch as after it was pleaded, the court would then be able to inquire into it, to determine its effect. It was the private nature of the pardon, as offered by the executive to the inmate, that made its proof in court necessary. The Supreme Court also cited and quoted from several leading English authorities and case law, including Blackstones Commentaries, to the same effect; that is, that a pardon to be effective must be accepted, and pleaded by the person in whose favor it is offered, and that its benefit is waived if not pleaded. Id. at 161-63.

25 If Wilson left any uncertainty as to whether only an unconditional, as opposed to a conditional pardon could be rejected by the pardonee, that uncertainty was eliminated by a later case, at least for purposes of the federal constitution. In Burdick v. United States, 236 US 79, 35 S Ct 267, 59 L Ed 476 (1915), an editor of a New York City newspaper was called to testify before a grand jury that was investigating alleged customs fraud. The witness refused to testify, invoking his constitutional privilege against self-incrimination. President Wilson then issued a full and unconditional pardon to the witness, for any crimes he has committed or may have committed in connection with anything he might be interrogated about. Burdick, 236 US at 85-86. The witness declined to accept the pardon and again refused to testify, and was held in contempt and incarcerated. On appeal, the Government argued that the President had the power to pardon someone before he was convicted, and that the acceptance of the pardon is not necessary to its complete exculpating effect. Id. at 87. The Supreme Court concluded that it was unnecessary to decide whether a pardon may be granted before the pardonee had been convicted; instead, it found that Wilson was dispositive upon the second question. Id. at 87-88. The Supreme Court summarized its reasoning as follows: That a pardon by its mere issue has automatic effect resistless by him to whom it is tendered, forcing upon him by mere executive power whatever consequences it may have or however he may regard it, which seems to be the contention of the Government in the case at bar, was rejected by the court [in Wilson] with particularity and emphasis. The decision is unmistakable. A pardon was denominated as the private act, the private deed, of the executive magistrate, and the denomination was

26 advisedly selected to mark the incompleteness of the act or deed without its acceptance. Burdick, 236 US at 90. In response to the suggestion that Wilson dealt only with conditional pardons, the Supreme Court stated that the pardon passed on [in Wilson] was not conditional, but, as described above, only limited to a particular crime in its application. Id. at 92. The Supreme Court quoted from Wilson and, by adding italics to the word, emphasized the private, although official, nature of an executives grant of clemency. Id. at 90. Regardless of the alternative of acceptance whether it be death or lesser penalty, rejection of the offered pardon remained the right of the individual against the exercise of executive power not solicited by him nor accepted by him. Id. at 91. Although it found Wilson to be dispositive, the United States Supreme Court in Burdick went on to show how the acceptance theory was in accord with generally prevailing law. It cited one of its own prior decisions, Ex parte William Wells, 59 US 307, 15 L Ed 421 (1856), in which it had stated that the court in Wilson had acted with the fullest knowledge of the law upon the subject of pardons, and the philosophy of government in its bearing upon the Constitution. Burdick, 236 US at 91. It also cited a decision of the Supreme Judicial Court of Massachusetts authored by Justice Gray, later a justice of the United States Supreme Court, who discussed the case law with the same accurate and masterful consideration that distinguished all of his judicial work. 236 US at 91-92, citing Commonwealth v. Lockwood, 109 Mass 323 (1887).

27 The result in Burdick was that the contempt was dismissed, and the witness discharged: Granting then that the pardon was legally issued and was sufficient for immunity, it was Burdicks right to refuse it, as we have seen, and it, therefore, not becoming effective, his right under the Constitution to decline to testify remained to be asserted[.] Burdick, 236 US at 94. Although this Court has never cited Burdick, that case does clarify and reiterate the holding in Wilson, and shows beyond any doubt that the doctrine adopted in that case had nothing to do with the conditional or unconditional nature of the pardon involved. It also shows that, in adopting the acceptance concept of acts of executive clemency, this Court in Carpenter was acting in conformity with generally prevailing law at the time construing the clemency power found in both the federal and state constitutions. The United States Supreme Court later appeared to backpedal from the acceptance concept of a pardon. It stated that a pardon in our days is not a private act of grace from an individual happening to possess power, but rather a part of the Constitutional scheme, and when granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed. Just as the original punishment would be imposed without regard to the prisoners consent and in the teeth of his will, whether he liked it our not, the public welfare, not his consent, determines what will be done. Biddle v. Perovich, 274 US at 486 (1927).

28 These constitute directly contradicting conceptions of the constitutional power to grant clemency: the acceptance theory of Chief Justice Marshall, adopted in Wilson and reiterated in Burdick, under which an act of clemency is a private, though official act, versus the public welfare theory of Justice Holmes, in Biddle. See G. Sidney Buchanan, The Nature of a Pardon Under the United States Constitution, 39 OHIO STATE L J 36 (1978)(arguing, on policy and legal grounds, in favor of Justice Holmes). This Court has already come down squarely on the side of Wilson and Chief Justice Marshall. Governor Kitzhaber inexplicably attempts to distinguish Wilson on the basis that it involved a pre-conviction pardon. It makes sense, even under the public welfare conception of clemency, that a person should have the ability to reject a pardon issued before a conviction, or before a criminal charge is even brought, inasmuch as a pre-conviction pardon carries an imputation of guilt and acceptance a confession of it. Burdick, 236 US at 94. Governor Kitzhaber asserts that Wilson involved a defendants attempt to reject a pardon that was issued before his conviction; that Wilson is a case that is limited to a preconviction pardon, and that that fact was critical to the outcome in that case. (App Br 17). He further asserts that the Supreme Court in Wilson analogized the pre conviction pardon to a deed (App Br 17, emphasis added); and that Wilson simply stands for the proposition that where the pardon is delivered to the individual directly before his conviction, a court could not take judicial notice of it. (App Br 18; emphasis added). He even goes so far as to write, but without

29 direct quotation, that in Wilson, the Court was careful to note that the pardon was issued before the conviction. (App Br 27; emphasis added). But, as shown above, it is indisputable that Wilson involved a postconviction, not a pre-conviction pardon. President Jackson pardoned Wilson for the crime for which he had already been sentenced to death, and after he had already changed his pleas to guilty on the remaining charges. The Supreme Court was not careful to note the pre-conviction nature of the pardon, because it was a post-conviction pardon. There is nothing inherently implausible about the idea that inmate has the power to reject an act of clemency, such as a commutation that would result in his release from prison, or a reprieve in a non-capital case, so that he remains incarcerated against the will of the states executive power. In Bollinger v. Board of Parole, 329 Or 505, 992 P2d 445 (1999), this Court held that, under thenexisting statutes, an inmate could elect to reject an offer of parole and remain in prison until the expiration of his sentence. Even if Dormitzers statement that reprieves can be accepted or rejected is not extended beyond the facts involved in that case, which involved a conditional reprieve, there is no basis for concluding that a person offered clemency should lack the ability to reject it, when the clemency offered is unconditional. Cases cited by this Court in Houghton show that the broader power carries the ability to attach a variety of conditions to an act of clemency, such as leaving the state, or being subject to reincarceration without a judicial determination, or refraining

30 from the use of alcoholic beverages, or using all proper exertion to support a relative. Houghton, 49 Or at 235-37. The attachment of conditions to an act of clemency, a power not mentioned in either the federal or state constitution, might be thought of as a broader power than the power to grant an unconditional pardon, commutation, or reprieve. If the greater power of a pardon comes with the inherent limitation that it can be rejected by the person in whose favor it is granted, it should follow that the lesser power conferred upon the Governor to grant a pardon or reprieve, should also be so limited, not that it should be less limited. Governor Kitzhabers essential argument on appeal, boiled down, is as follows: (1) The scope of the Governors power to grant clemency conferred by Article V, section 14 of the Oregon Constitution, like the Presidents power under the United States Constitution and the power of Great Britains monarch before that, was intended to be and always has been broad; (2) to make a grant of clemency subject to its acceptance by the recipient would be a limitation on that power (except when the clemency is conditional); (3) therefore, any unconditional grant of clemency is effective regardless of whether it is accepted by the recipient. The argument is simplistic. Undoubtedly, an executives selection of a particular prisoner as deserving of clemency is broad. But that says nothing about the scope of the clemency power in other respects. Thus, Governor Kitzhabers repeated description of his constitutional clemency power as plenary is unhelpful. For example, does the Presidents power under Article II, section 2 of the United States Constitution to grant Reprieves and Pardons for Offenses

31 against the United States, except in Cases of Impeachment include the power to pardon a contempt of court? If the Presidents pardon power was plenary, or absolute, it would seem that such a question would not even come within the purview of a reviewing court, or that if it did, would be an easy question to resolve. In deciding that the President does have the power to pardon a criminal contempt, the United States Supreme Court did not refer to the plenary power of the President which might also have led the Court simply to have declined to decide the issue at all, on political question grounds but instead engaged in a lengthy discussion of the scope and history of the Presidents clemency power. Ex parte Phillip Grossman, 267 US 87, 45 S Ct 332, 69 L Ed 527 (1925).11 Defendant also asserts, early in his brief, that case law surrounding Article V, section 14 demonstrates that a governors clemency power is unfettered by any requirement that a grant of clemency be accepted by the recipient. (App Br 2). The brief fails miserably to deliver on this promise. As support it cites exactly one case: an unnamed decision from the year 1220 that is digested in David Jenkins, Eight Centuries of Reports, Case LXII, Third Cent, p 139 (4th ed 1885).12 (App Br

The political question doctrine is of long provenance in the United States Supreme Court, and one of the situations in which the Court will decline to exercise judicial review is when there is a textually demonstrable constitutional commitment of the issue to a coordinate political department. Baker v. Carr, 369 US 186, 217, 82 S Ct 691, 7 L Ed 2d 663 (1962). Jenkins Centuries was prepared by Judge Jenkins during his years of imprisonment as a royalist during the Interregnum, and was first published in 1661. The Century in the title refers to the treatises grouping of cases by the hundred, rather than to 100 years. The year this particular case was decided is not (continued...)
12

11

32 11). The abstract of the case, in its entirety, is as follows: The king grants a pardon, with several exceptions of certain persons and offences; he that will have the benefit of it, ought to plead that he is not one of the persons excepted. If the king pardons a felon, and it is shewn to the court; and yet the felon pleads not guilty, and waives the pardon, he shall not be hanged; for it is the kings will that he shall not; and the king has an interest in the life of his subject. The books to the contrary are to be understood, where the charter of pardon is not shewn to the judges. This brief, and cryptic summary of a decision nearly 800 years old is weak enough authority by itself, given this Courts repeated approval of the contrary view. More importantly, it is cited, but explicitly disavowed as contrary authority by the United States Supreme Court in Wilson. Here again, Governor Kitzhaber completely misrepresents Wilson; this time, in how it treats the case from Jenkins. He states that Wilson cite[s] [Jenkins] for the proposition that where the king pardons a felon but the felon wishes to waive the pardon, he cannot be hanged. (App Br 19-20). That is merely misleading, in that describing an opinion as citing a case for a proposition implies approval, whereas actually the Supreme Court cited the case only as apparently contrary authority, which it then construed in such a way as to harmonize with other, supporting authorities upon which the Supreme Court relied. But defendants (...continued) noted in Jenkins Centuries, but is found through its citation 8 E. 4, 7 in the margin and the table of cases, and then by locating that citation in the English Reports database maintained by the Commonwealth Legal Information Institute (available at: www.commonlii.org/uk/cases/EngR).
12

33 brief then continues: Although the Court seemed unwilling to extend that principle to pre conviction pardons, were the felon not to plead the pardon, the Court otherwise approved of the notion that, once an individual is convicted and then receives a pardon, that individual cannot waive the pardon and force his government to execute him. (App Br 20; emphasis added). This sentence is a travesty of legitimate legal argument. The worst of it is not its egregious distortion of Wilsons treatment of the case from Jenkins Centuries. Rather, it is its statement that the Supreme Court approved of the notion that once an individual is convicted he cannot waive a pardon, which is an utter fabrication. The Supreme Courts treatment of the case in Wilson is as follows. Following several paragraphs citing statements from three authorities supporting its acceptance or waiver conception of pardons Hawkins Pleas of the Crown, Comyns Digest, and Bacons Abridgement the Court says that it has met with only one case which might seem to question it. Wilson, 32 US at 162. Then, after quoting the entire second paragraph of the Jenkins case, as quoted above, the Court continues with the following paragraph: This vague dictum supposes the pardon to be shown to the court. The waiver spoken of is probably that implied waiver which arises from pleading the general issue; and the case may be considered as determining nothing more than that the prisoner may avail himself of the pardon by showing it to the court, even after waiving it by pleading the general issue. If this be, and it most probably is the fair and sound construction of this case, it is reconciled with all the other decisions, so far as respects the present inquiry.

34 Wilson, 32 US at 162. This is the Courts entire discussion of the case from Jenkins Centuries. Chief Justice Marshall for the Supreme Court could not have been more precise and clear. He reconciles the case with the other authorities upon which he depends in adopting the acceptance theory, by treating it as involving only a pleading issue; that is, as holding that, if a defendant pleads only the general issue, he is not thereafter barred from pleading a pardon.13 It cannot be, as defendant suggests, that the Supreme Court exempted capital cases from its rule, because the court explicitly stated the contrary: It may be supposed that no being condemned to death would reject a pardon; but the rule must be the same in capital cases and in misdemeanors. Wilson, 32 US at 161. Because, as already noted, the Supreme Court in Wilson was addressing a post-conviction, rather than pre-conviction pardon, it could not possibly have distinguished the Jenkins case on the basis that it was a pre-conviction pardon. Nowhere in its opinion does it draw any distinction between pardons on this basis. There is not the slightest hint anywhere in the Courts opinion that it approved of the notion, as defendant asserts it did, that once a defendant is granted a postconviction pardon, he cannot waive it. The idea is pure fantasy. B. Defendant has not demonstrated sufficient cause for this Court to overrule its previous clemency precedents.

General issue means: A common law pleading, abolished as such in most states using a reformed system of pleading, consisting of a denial in short form of all that is material in the complaint or declaration. Somewhat analogous to the general denial of modern code and rules procedure. Ballentines Law Dictionary (3d ed 1969), p 520.

13

35 The foregoing precedents are consistent over a period of 50 years. In addressing prior constructions of a statute or constitutional provision, this Court begin[s] with the assumption that issues considered in our prior cases are correctly decided, and the party seeking to change a precedent must assume responsibility for affirmatively persuading us that we should abandon that precedent. Farmers Insurance Company of Oregon v. Mowry, 350 Or 686, 698, 261 P3d 1 (2011), quoting State v. Ciancanelli, 339 Or 282, 290, 121 P3d 613 (2005). Defendant has failed to meet that burden. For several reasons, this case would be an especially inappropriate vehicle for the overruling of this Courts precedents adopting the acceptance theory of clemency. First, the multiple precedents defendant seeks to overturn have been consistent over a long period of time. Second, the idea adopted in Biddle v. Perovich, and urged upon this Court by defendant and his amici, is that clemency is part of the Constitutional scheme when granted is a determination by the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed. Biddle, 274 US at 486. That executive clemency is part of the constitutional scheme, both federal and in this state, and that a grant of clemency serves the public welfare as well as the individual interest of the recipient, is no more than a truism. The criminal code of every country partakes so much of necessary severity that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. The Federalist No. 74 (Hamilton). That

36 is, the determination of the executive that a particular individual is deserving of mercy, in the face of justice that has been administered too cruelly, is by definition an act that also serves the public welfare, through its amelioration of a sentence in an individual case.14 That does not detract from this Courts description of executive clemency as an act of grace or favor, which by its nature cannot be forced upon an unwilling recipient. Third, the prisoner in Biddle was attempting to win his freedom from incarceration, even though the President had only commuted his sentence for murder from death to life imprisonment, rather than pardoned him. Perovich had been convicted of murder in Alaska and sentenced to death. President Taft commuted his sentence to life, and also directed that he serve his life sentence in a penitentiary designated by the Attorney General. After his transfer to the federal penitentiary in Leavenworth, Kansas, Perovich petitioned for a writ of habeas corpus. He argued that his removal from jail [in Alaska] to a penitentiary, and the order of the President, were without his consent and without legal authority,

Defendants amici describe the reprieve as serving a public purpose because it will allow Oregonians to reconsider the death penalty, and gives them the opportunity to fully debate and assess its wisdom. (Amicus Br 2, 14-15). They do not explain, however, what has prevented or hindered the public from engaging in that reconsideration or reassessment. Amici also discern a national trend in favor of abolition of the death penalty. (Amicus Br 20 n 9). They do so only by ignoring contrary evidence. In the November, 2012 election, for example, California population 37 million voted by a heavy margin (60.2 to 37.1 percent) to re-elect President Obama over his challenger, but at the same time voted by a margin of 52 to 48 percent against Proposition 34, which would have abolished Californias death penalty. (Data from California Secretary of State official website).

14

37 Biddle, 274 US 485, and that as life imprisonment was a different kind of punishment than death, that sentence could not be imposed through a commutation without his consent. The district court agreed and ordered the prisoner to be set at large, id., at 485; that is, the district court did not order Perovich returned to Alaska so that he could be executed, but only that he be freed from incarceration in Kansas, which incarceration was without legal authority. Finally, the unusual nature of Governor Kitzhabers reprieve, and the burden it puts upon plaintiff, makes this an especially inappropriate case to use to overturn this Courts long-standing precedents. The reprieves stated purpose in serving what the Governor perceives to be the greater welfare, as against plaintiffs individual rights, such as they are, makes this a particularly inapt case in which to depart from precedent and hold that clemency can be forced on a prisoner who does not want it. A person who has been condemned to death by a court has obviously lost a large measure of his liberties. But he has not surrendered all of them. He retains, first, a liberty interest in being free from the imposition of cruel and unusual punishment, while incarcerated awaiting the imposition of punishment. Second, he retains the irreducible dignity of conscience to which every human being is entitled, up until he takes his last breath. This brief next discusses these two impregnable liberty interests upon which no government can encroach.

38 1. The reprieve subjects plaintiff to cruel and unusual punishment under the Eighth Amendment and the Fourteenth Amendments Due Process Clause.

As already noted, the reprieve subjects plaintiff to an extended period of uncertainty against his will. The reprieve could end unexpectedly at any time, or could last for up to seven years.15 Accordingly, a substantial question is presented in the underlying case whether the ostensible reprieve subjects petitioner to cruel and unusual punishment. [T]he Eighth Amendment prohibits all punishment, physical and mental, which is totally without penological justification, Farmer v. Brennan, 511 US 825, 835(1994)(quotation marks omitted), and [a] sentence lacking any legitimate penological justification is by its nature disproportionate to the offense. Graham v. Florida, 130 S Ct 2011, 2028 (2010); see also Gregg v. Georgia, 428 US 153, 183 (1976)(the sanction imposed cannot be so totally without penological justification that it results in the gratuitous infliction of suffering). The right to be free from cruel and unusual punishment flows from the basic precept of justice that punishment for crime should be graduated and proportioned to both the offender and the offense. Miller v. Alabama, 132 S Ct 2455, 2458 (2012)(emphasis added), quoting Roper v. Simmons, 543 US 551, 560 (2005). Defendants amici bizarrely describe the reprieve as expiring no sooner than the end of defendants service as Governor. (Amicus Br 1). Governor Kitzhaber obviously has no power to make his reprieve last any longer than his service as governor. If it does last longer than that, it will be only because his successor as Governor continues it.
15

39 The additional punishment the state has imposed upon plaintiff here an indefinite, prolonged period of waiting without knowing when or whether he will be put to death fails these requirements. This sanction, imposed upon plaintiff against his will like other sentences, has nothing at all to do with the nature of plaintiffs crime or culpability, and lacks any penological justification whatsoever. Rather, the delay is the result solely of Governor Kitzhabers judgment that petitioners execution should be put on hold while the People of Oregon engage in a debate over whether to abolish the death penalty. The United States Supreme Court has stated that when a prisoner sentenced by a court to death is confined to the penitentiary awaiting the execution of the sentence, one of the most horrible feelings to which he can be subjected during that time is the uncertainty during the whole of it. In re Medley, 134 US 160, 172 (1890). Any condemned inmate will necessarily be subject to that situation, but petitioners is worse, given the extended period of time during which it will last, and the additional uncertainty of not knowing whether he ever will be executed at all. The period of uncertainty involved in Medley was four weeks. Another court has stated: The cruelty of capital punishment lies not only in the execution itself and the pain incident thereto, but also in the dehumanizing effects of the lengthy imprisonment prior to execution during which the judicial and administrative procedures essential to due process of law are carried out. Penologists and medical experts agree that the process of carrying out a verdict of death is often so degrading and brutalizing to the human spirit as to constitute psychological torture. People v. Anderson, 493 P2d 880, 894 (Cal. 1972); see also Furman v. Georgia,

40 408 US 238, 188-289 (1972)(Brennan, J., concurring)([T]he prospect of pending execution exacts a frightful toll during the inevitable long wait between the imposition of sentence and the actual infliction of death); Suffolk County District Attorney v. Watson, 411 NE 2d 1274, 1287 (Mass 1980)(Braucher, J., concurring)(death penalty is unconstitutional under state constitution in part because [i]t will be carried out only after agonizing months and years of uncertainty). Two Justices of the Supreme Court have suggested that it is a question deserving that Courts plenary review, whether it amounts to cruel and unusual punishment under the Eighth Amendment to execute a death-row inmate after long years of delay, even when that delay is caused by the inmates own pursuit of legal challenges to his conviction or sentence. Valle v. Florida, 132 S Ct 1 (2011)(Breyer, J., dissenting from denial of stay; 33-year delay); Johnson v. Bredesen, 130 S Ct 541, 542 (2009)(statement of Stevens, J., joined by Breyer, J., respecting denial of certiorari); Lackey v. Texas, 514 US 1045 (1995)(statement of Stevens, J., respecting denial of certiorari). Here, the potential delay will not be as long as in these cases; on the other hand, it will be caused not by the prisoner himself, while he pursues legal challenges to his sentence, but by the state against the prisoners will.

41 2. The reprieve deprives plaintiff of his liberty interest, protected by the Due Process Clause of the Fourteenth Amendment, in his individual dignity and autonomy.

Petitioner also has a liberty interest in his basic autonomy as an individual, that was not extinguished upon his conviction and sentence of death. [T]he laws duty to respect individual dignity is heightened, not diminished, when choices are made in the shadow of death. Richard J. Bonnie, The Dignity of the Condemned, 74 VA. L. REV. 1363, 1391 (1988). As put by a judge of the United States Court of Appeals For the Ninth Circuit, to ignore a condemned prisoners request to forego legal challenges would be to incarcerate his spirit the one thing that remains free and which the state need not and should not imprison. Lenhard ex rel. Bishop v. Wolff, 603 F2d 91, 94 (9th Cir 1979)(Sneed, J., concurring in denial of stay of execution).16 Resolution of the issues presented in this case should not be influenced by ideological concerns. Certainly, a conscious choice of death over some alternative should not be deemed to be necessarily an irrational, or illegitimate one; especially not in Oregon, whose voters have made it official policy, formalized in law, that suicide is a dignified way to depart this life. See ORS 127.800 to 127.897 (Death With Dignity Act). It is not at all uncommon for condemned prisoners to decline to fight lengthy battles over their sentence, and instead submit to the punishment imposed. See It is disappointing that the American Civil Liberties Union has weighed in as amicus in this case on behalf of government power, and against individual liberties.
16

42 John H. Blume, Killing the Willing: Volunteers, Suicide and Competency, 103 MICH. L. REV. 939, 940 (2005)(estimating that 106 of the 885 executions that were carried out between 1977 and 2003, or about 12 percent, were of prisoners who elected not to challenge their sentences). It may be that a condemned inmate who declines to pursue challenges to his sentence has elected to place his debts on a new existence in some world beyond this. Evans v. Bennett, 440 US 1301, 1305 (1979)(opinion of Rehnquist, J., acting as Circuit Justice, granting stay of execution). Then-Justice Rehnquist, in another volunteer case, expressed concern that however worthy and high minded the motives of next friends may be, they inevitably run the risk of making the actual defendant a pawn to be manipulated on a chessboard larger than his own case. Lenhard v. Wolff, 443 US 1306, 1312 (1979)(opinion of Rehnquist, J., acting as Circuit Justice). ThenJustice Rehnquist continued: The idea that the deliberate decision of one under sentence of death to abandon possible additional legal avenues of attack on that sentence cannot be a rational decision, regardless of its motive, suggests that the preservation of ones own life at whatever cost is the summum bonum, a proposition with respect to which the greatest philosophers and theologians have not agreed and with respect to which the United States Constitution by its terms does not speak. Id. Here, it is not a friend but the State of Oregon, acting through its chief executive, that seeks to make plaintiff its pawn. The Governor purports to act out of the highest righteousness, but his unwanted reprieve is actually a profound affront to plaintiffs inalienable right as a human being to form and then act

43 according to his own conceptions about the intimate, unfathomable questions of life and death. One of the greatest philosophers then-Justice Rehnquist presumably had in mind was Socrates, who like plaintiff willingly submitted to the death penalty rather than choosing what others considered to be a wiser option. In the final sentence of his oration to the jurors who had sentenced him to death, Socrates expressed his skeptics faith with plain-spoken eloquence that can never be improved upon: Now it is time that we were going, I to die and you to live, but which of us has the happier prospect is unknown to anyone but God. Plato, Apology (Tredennick trans). III. The Governors reprieve is unlawful because it exceeds the authority conferred upon him by Article V, section 14. Defendant has elected not to address the alternative basis plaintiff asserted below for invalidating the reprieve; namely, that the ostensible reprieve, despite its label, is not actually a reprieve, and so is beyond Governor Kitzhabers authority conferred by Article V, section 14 of the Oregon Constitution. Plaintiff discusses this alternative basis as a precaution against the possibility that this Court determines that a governor may force a reprieve upon an unwilling recipient. An alternative basis for affirming a trial courts judgment is appropriate here, where the pertinent facts are undisputed; the case was submitted to the trial court upon a motion for judgment on the pleadings based on the facts established by the amended complaint and answer. See Outdoor Media Dimensions Incorporated v. State of Oregon, 331 Or 634, 658-60, 20 P3d 180 (2001)(setting forth requirements for right for the wrong reason claim by plaintiff).

44 The different forms of executive clemency mentioned in the Oregon Constitution pardon, commutation, reprieve, and remission all have fairly precise, and long-standing meanings. A pardon blots out the very existence of [an offenders] guilt, so that, in the eye of the law, he is thereafter as innocent as if he had never committed the offense. Anderson v. Alexander, 191 Or 409, 425, 229 P2d 633 (1951). A commutation is a change of punishment to which a person has been condemned to one less severe. Fehl v. Martin, 155 Or 455, 459, 64 P2d 631 (1937). A reprieve is the withdrawing of a sentence for an interval of time, which operates in delay of execution. Fehl, 155 Or at 459, citing Bouviers Law Dictionary. It does not operate to stop the carrying out of a sentence, but only suspends it, to enable some circumstance to change, and once that change occurs, then unless some other event prevents it, such as a pardon or reversal on appeal, the sentence is carried out. As discussed below, the Governors ostensible reprieve lacks an essential attribute of a reprieve, which is that it operate only for an interval of time. The reprieve lacks an expiration date, and so lasts for an indefinite, rather than definite period of time. Moreover, the ostensible reprieve was granted, not to allow a circumstance to change or to enable Mr. Haugen to seek some legal relief, but with the intention that his sentence will never be carried out; not by any actual clemency granted by Governor Kitzhaber, but by what he hopes will be the abolition of the death penalty by the Legislative Assembly, or the People. The reprieve, despite its label, is actually an attempted suspension of the

45 operation of certain laws, concerning which the Governor has misgivings. For that reason, the reprieve exceeds the Governors power conferred upon him by Article V, section 14, and is invalid. To shed light upon the meaning of a reprieve within the meaning of the Oregon Constitution, this memorandum discusses the constitutional and statutory context of the Constitutions clemency power, case law, and the historical uses of the reprieve. The Governors act is similar to a reprieve in certain ways. However, because what he did lacks the essential characteristics of a reprieve, it is not actually a reprieve, but rather an attempted suspension of the operation of certain of our States laws. The Governor has no such power; indeed, other provisions of the Oregon Constitution explicitly forbid it. The question presented should be answered by resort to the text and context, both constitutional and statutory, case law, and the historical experience that led to its creation. Priest v. Pearce, 314 Or 411, 415-16, 840 P2d 65 (1992). When analyzing terms in the original Oregon Constitution, a court should examine the meanings of the terms as framers would have understood them. Rico Villalobos v. Giusto, 339 Or 197, 206, 118 P3d 246 (2005). The Constitution does not define what a pardon, commutation, or reprieve is. It did not do so because, most likely, each of those terms had well-understood, specific meanings at the time the Constitution was adopted. Before turning to case law and history, compelling clues to the Framers understanding of those terms are

46 provided, first, by placing the Governors clemency power in the context of other, related constitutional provisions, and then in the context of a statute that was adopted by the legislature near the time of the adoption of the Constitution. A. Constitutional context.

Two provisions of the Oregon Constitution that, like the Governors clemency power, were adopted as part of the original constitution, and one provision adopted more recently, shed light on the understanding of what a reprieve is. The meaning of a provision of the Oregon Constitution should be determined in light of other provisions of the constitution, in addition to the text of the section at issue. State v. Hirsch, 338 Or 622, 634, 114 P3d 1104 (2005); State v. Finch, 54 Or 482, 497, 103 P 505 (1909). First, the Oregon Constitution sets forth the Governors overriding duty, with respect to the laws enacted by the People or the legislature. It is simply that he shall take care that the Laws be faithfully executed. Art V, 10. Adding emphasis, another provision provides that the operation of the laws shall never be suspended, except by the Authority of the Legislative Assembly. Art I, 22. Governor Kitzhabers reprieve, especially in the light of his broader moratorium on the carrying out of any executions during his service as Governor, amounts to a suspension of certain laws; namely, those laws, found at ORS 137.463 to 137.482, specifically directing how a death sentence, once imposed by a court, should be carried out.

47 For example, ORS 137.463(5) provides that, once a hearing has been conducted and the defendant has validly waived his right to pursue any further legal challenges, a death warrant, which must specify a day on which the sentence of death is to be executed, must be drawn and delivered to the superintendent of the prison. The death warrant must command the superintendent to execute the judgment of the court, upon a specified date that must be at least 90, but less than 120 days after the appellate judgment on automatic appeal, has been issued. The procedures for actually inflicting the death of the defendant are prescribed by ORS 137.473, and after death has been inflicted, the superintendent must return the warrant to the court, showing the time, place and manner in which the death warrant was executed. ORS 137.478. Although it might be supposed that the prohibition against suspension of the laws by anyone other than the Legislative Assembly refers to a suspension of all the laws that is, a declaration of martial law that is not how this Court has interpreted it. In MacPherson v. Department of Administrative Services, 340 Or 117, 130 P3d 308 (2006), this Court addressed a challenge to a ballot measure that required the state to either compensate landowners for the reduction to the value of their property caused by land-use regulations, or repeal the regulations. It rejected the claim that the law violated Article I, section 22, in that it suspended the operation of land-use regulations. Using Nineteenth-century dictionaries, this Court construed suspend as meaning to interrupt; to intermit; to cause to cease for a

48 time; or to cease for a time from operation or effect. MacPherson, 340 Or at 132. This Court held that the ballot measure constituted an amendment of land-use regulations in certain particulars, and that no law was suspended. In contrast here, the suspension of the operation of those laws for a certain period of time is a perfectly accurate description of the effect of the Governors reprieve. For a certain period of time, which is the duration of Governor Kitzhabers service as Governor, the ordinary operation of these laws, in the case of one particular inmate, will be interrupted and will cease for a time from operation and effect. But this temporary cessation will be brought about not by the act of the Legislative Assembly, which exclusively has been given that power by Article I, section 22, but by action of the Governor, who has no such power. To be sure, any lawful reprieve may also have the effect of interrupting the operation of those laws, for a specified duration. Because a real reprieve lasts only for a specified time, however, at least the suspended laws will be sure to start to operate again, after the expiration of the reprieve. Not so with Governor Kitzhabers ostensible reprieve. As discussed below, the fact that his reprieve lacks an expiration date confirms that it amounts to a suspension of certain laws, rather than a suspension of a sentence. An expiration date is essential to a reprieve because a reprieve cannot defeat the ultimate execution of a sentence, but only delay it. And, it is undisputable, from the terms of the reprieve itself, and from Governor Kitzhabers elaboration of his reasons for granting it in his statement

49 announcing his moratorium, that his purported reprieve is directed specifically at the laws involved, and not at Mr. Haugen as a deserving recipient of clemency. Governor Kitzhabers reprieve of Mr. Haugen, by its terms, was not issued because he is, under the Governors assessment, deserving of mercy, but only for the reason that Governor Kitzhaber believes that the laws implementing the death penalty are broken and are not being carried out to promote what he considers to be justice. But the original Constitution, at the same time as it conferred upon the Governor the power to grant pardons, commutations, reprieves, and remissions, explicitly placed it within the exclusive authority of the Legislative Assembly to enact laws, to suspend their operation for a period of time, and, if in its assessment certain laws are broken or not being carried out fairly, to amend or repeal them. All of these constitutional provisions must be harmonized; that is, each of them must be construed so that it retains some meaning and operative effect. Holding Governor Kitzhabers reprieve to be constitutional as within his clemency power would be to find that the Governor is not obliged to faithfully execute a certain penal law, if he believes the law is not being carried out fairly, and would permit him to suspend the operation of that same law. These provisions cannot be harmonized if the Governors reprieve of Mr. Haugen is constitutional. The power of clemency also should be construed in light of the fact that, when Oregonians voted to adopt the death penalty in 1984, by a three-to-one margin, they placed a provision in the Oregon Constitution at the same time, providing that notwithstanding other provisions, a jury may impose the death

50 penalty for aggravated murder. Or Const, Art I, 40.17 It is therefore part of the supreme, constitutional law of Oregon that the death penalty, contrary to the Governors personal views, is not immoral. Any attempt to suspend the operation of the law on that basis, would also contradict this constitutional provision. B. Statutory context.

Article V, section 14 provides that the Governors authority to grant pardons, commutations and reprieves, is subject to such regulations as may be provided by law. Therefore, statutes adopted by the legislature implementing the constitutional power, especially those enacted contemporaneously with the original adoption of the Constitution, should carry special weight in construing the meaning and scope of the Governors authority.18 In one of its earliest sessions, the Legislative Assembly enacted the following statute:

Although the voters adopted statutes providing for the death penalty (Measure 7) by a vote of 75.1 to 24.9 percent, their adoption of a separate measure adding Section 40 to Article I of the Constitution (Measure 6) was by a lesser margin (55.6 to 44.4 percent). (Data obtained from Secretary of States website). State ex Rel Oregonian Pub. Co. v. Deiz, 289 Or 277, 283-84, 613 P2d 23 (1980), in which the Supreme Court stated that [c]ontemporaneous legislative actions should not necessarily be given much weight when construing constitutional principles, is not to the contrary. Deiz involved the direction of Article I, section 10 that courts cannot be secret, but must be operated openly. This Court rejected the idea that an early statute, which provided that the judge in a civil action, upon the agreement of the parties, could conduct the trial in private, was valuable in construing the meaning of Article I, section 10. Deiz is weak authority here, because the constitutional provision involved specifically provides that the power granted must be exercised subject to such regulations as may be provided by law.
18

17

51 The governor must communicate to the legislative assembly, at its next meeting thereafter, each case of reprieve, commutation or pardon, with the reasons for granting the same, stating the name of the convict, the crime of which he was convicted, the sentence and its date, and the date of the commutation, pardon or reprieve; and also the like statement of particulars in relation to each case of remission of a penalty or forfeiture, with the amount remitted. General Laws of Oregon, Crim Code, Ch XXXIII (Deady 1845-1864), 335 (Oct 19, 1864)(Deady). Thus, the understanding of acts of clemency held by an early legislative assembly was that the particulars of each pardon, commutation or reprieve be communicated to the legislature. The particulars of the reprieve in this case, however, are irrelevant; it was granted only for general reasons, having everything to do with how Governor Kitzhaber regarded the morality of capital punishment, and how Oregons death penalty was being implemented, and nothing whatsoever to do with the particulars of Mr. Haugens case. Another statute enacted at the same time details the procedures to be followed [w]hen application is made to the Governor for a pardon. The Governor is required to gather information from either the judge or district attorney involved, regarding the facts proved on the trial and any other facts having reference to the propriety of granting or refusing the pardon. Deady 336. No statute limits the Governor to issuing clemency only to applicants for it, but that was probably thought to be unnecessary, as so improbably occurring. The statute does show, however, that the legislature assumed that an act of clemency would ordinarily be issued after an application for it had been made.

52 The current version of the reporting statute, ORS 144.660, more clearly reflects an understanding that every act of clemency will be granted by the Governor only in response to an inmates request for it. The statute, since its amendment in 1965 (Or Laws 1965, ch 616, 91), has required the Governor to identify the applicant for each case of pardon, commutation and reprieve, instead of the convict involved. And, since another amendment in 1995, the Governor has been required to report additional information, all regarding the particular circumstances involved, consisting of statements by the victim or victims family; a statement of the district attorney; photos of the victim; and an autopsy report. ORS 144.660 (as amended by Or Laws 1995, ch 805, 2). Again, all of that information is completely irrelevant to the reprieve granted by the Governor in this case, inasmuch as he granted it for reasons that have nothing to do with the nature of plaintiffs crime. C. Case law.

This Court discussed the nature of a reprieve in State v. Finch, 54 Or 482, 103 P 505 (1909), a review of a murder conviction and death sentence.19 The defendant argued on appeal that infliction of the death penalty would violate the provision of the Oregon Constitution (Article I, section 15) that required that laws enacting punishment for crimes be founded on principles of reformation instead of vindictive justice. Applying the rule that the meaning of a constitutional The defendant was an attorney who was convicted of murdering a prosecutor for the State Bar Association, which had brought charges against the attorney for drunkenness in court and other misconduct. Finch, 54 Or at 488.
19

53 provision is to be determined by construing it in pari materia with other constitutional provisions, as mutually explaining and interpreting each other, this Court quoted from the following definition of a reprieve from a treatise well-known at the time, as follows: A reprieve operates only in capital cases, and is granted either by the favor of his majesty himself or the judge before whom the prisoner is tried, in his behalf, or from the regular operation of law, in circumstances which render an immediate execution inconsistent with humanity and justice. Finch, 54 Or at 497-98 (emphasis added), quoting 3 Chitty Crim Law, p 757.20 A reprieve was a respite of a sentence of death, so that it does not prevent it from occurring, but only delays it. Finch, 54 Or at 498. Other case law and secondary authorities are in accord, and also indicate that a reprieve is granted only for a definite, rather than indefinite period of time. One law dictionary defines a reprieve as [t]he postponement of the execution of a sentence for a definite time, or to a day certain, not defeating the ultimate execution, merely delaying temporarily. Ballentines Law Dictionary (3d ed 1969), at p 1096 (emphasis added), citing AM JUR, Pardons 7. at p 1096. A reprieve does not annul the sentence, but merely delays execution of it for the time

The Supreme Court concluded that the defendants theory had to be incorrect, because inasmuch as reprieves were granted only from death sentences, the theory would be to assume that the framers of the constitution abolished capital punishment, and in the same instrument provided that the governor might reprieve any one whom the courts had adjudged to be so punished. The power to lawfully reprieve from the sentence to death presupposes the power to sentence to death, and is itself a recognition of the lawfulness of capital punishment. Finch 54 Or at 498.

20

54 specified. CJS, Pardons and Parole, 33. A reprieve is a suspension or postponement of the execution of a sentence to a day certain, and postpones a sentence for a definite time. It does not and cannot defeat the ultimate execution of the judgment and sentence of the court, but merely temporarily delays its execution. Ex parte Hyde, 192 So 195, 160 (Fla 1939)(emphasis added). A reprieve * * * is only a suspension of the execution of the sentence of a Court. * * * After the termination of the period of the reprieve, the full purpose of the court, as expressed in the sentence, may be carried out. Only the date of execution is postponed; in no other way is the intention of the court interfered with. W. H. Humbert, The Pardoning Power of the President (American Council on Public Affairs 1941) p 26. Manifestly here, the Governor did not grant his reprieve because the circumstances existing at the time of his act made Haugens immediate execution inconsistent with humanity and justice. The definition of a reprieve adopted by the Supreme Court in Finch, which is consistent with the historical uses of reprieves, presupposes that the immediate circumstances that make a prisoners execution unjust will pass before the reprieve expires, so that the execution can then occur (unless the inmates sentence is commuted, or he is pardoned, or his sentence is vacated on appeal, in the meantime). That necessarily is based on the particular characteristics of the individual involved. But that is not at all the basis of Governor Kitzhabers reprieve of Mr. Haugen; rather, he acted not on the basis of any individualized assessment of Haugens circumstances at the time he was

55 scheduled to die, but of the Governors own determination regarding the general operation of the death penalty, and of his own, moral opposition to it. D. Historical practice.

Historical practice provides examples of when reprieves were useful, or necessary, and confirms the foregoing conception of a reprieve. In NineteenthCentury England, death sentences were common and, by statute, were required to be carried out only two days after judgment was imposed. 25 Geo II c 37; 4 William Blackstone, Commentaries on the Laws of England (3d ed 1862), p 223. Reprieves were used in certain situations requiring a suspension of the execution; for example, when a woman was condemned to death, and discovered to be quick with child, a reprieve enabled her to give birth, after which the execution could proceed without harm to the innocent. Reprieves were also granted when the defendant was insane, or when there was some question concerning whether the person in custody was the same person who had been sentenced to death. 4 Blackstone pp 457-59. In addition, [o]ften the purpose [of a reprieve] is to enable [a convicted person] to take advantage of remedial measures which may result in his being pardoned of the offense of which he has been convicted, or in a commutation of sentence, or in an opportunity to present his case for review before an appellate tribunal or to secure a new trial. Palka v. Walker, 198 A 265, 267 (Conn 1938). Thus, under former Oregon law, a reprieve was useful for purpose of enabling a defendant sentenced to death to pursue an appeal, during the time when appeals

56 could not be taken as of right. As of the publication of Hills General Laws in 1887, the hanging of a condemned prisoner was required to be carried out not less then 30, nor more than 60 days from the time of judgment. The Codes and General Laws of Oregon, Crim Proc, Chap XXII, 1422 (Hill 1887)(Hills Laws). Another statute in effect at the time provided that an appeal from a judgment of conviction automatically stayed the execution of it, but only upon the filing of a certificate of the judge of the court in which the conviction was had that there was probable cause for the appeal, but not otherwise. Hills Laws, 1440. (The judge to whom application was made for a certificate of probable cause had authority to stay the execution of the sentence, but that stay could last only until notice of the application could be provided to the district attorney. Id., 1441). Thus, a defendant sentenced to death who was denied a certificate of probable cause could not pursue an appeal, because the judgment would not be stayed and he would be executed long before the appeal could be decided. Under those circumstances, when the trial judge declined to issue a certificate of probable cause to a defendant sentenced to death, a reprieve from the Governor was the only means by which he would be enabled to pursue an appeal. Thus, for example, Governor L.F. Grover granted a reprieve on August 1, 1874, to Thomas Garrand, who had been sentenced to be hanged, in order to enable him to pursue an appeal to the Supreme Court. His conviction was reversed on appeal, State v. Garrand, 5 Or 156 (1874), but after retrial his conviction was affirmed, State v. Garrand, 5 Or 216 (1874), after which the Governor commuted his sentence to life

57 imprisonment (on the basis of the defendants youth). Report of Pardons, in BIENNIAL MESSAGE OF GOV. L. F. GROVER (State Printing Office 1876).21 Governor Oswald West, elected in 1910, was a staunch opponent of the death penalty, and after his election vowed that there would never be an execution in Oregon during his service as Governor. During 1911 he granted commutations to two prisoners who had been sentenced to hang. In January of 1912 Governor West proposed an initiative petition to put a measure on the ballot that would abolish the death penalty. He also granted reprieves to four prisoners who had been sentenced to death, but made the reprieve last until a certain date December 13, 1912 that was soon after the time Oregonians would vote on the measure. Because the reprieves were not contested presumably, because they were not unwanted their constitutionality was never addressed by an appellate court; however, the fact that Governor Wests reprieves at least lasted for a definite time at least provides some historical support and recognition that, in accordance with the authorities already cited, a reprieve must last until a specified day. On November 5, 1912, the measure was defeated by a large margin 60.6 percent to 39.4 percent and the four men were hanged on the day the reprieve expired. William R. Long, A Tortured History:

Although it is not mentioned in Governor Grovers official Message to the Legislative Assembly, examination of the reprieve itself shows that it specified an expiration date. Vol I, Executive Dept Records 1859-1874, at p 481.

21

58 The Story of Capital Punishment in Oregon (Or Crim Defense Lawyers Assn 2001), pp 27-31.22 The broad powers of courts in modern times to grant stays of judgments, or the automatic stays imposed by statutes, have rendered the reprieve a vestige of the law, and today they are very rarely used. No Oregon governor has granted a reprieve for 55 years, since June of 1958, when Governor Robert D. Holmes (served Jan 14, 1957, to Jan 12, 1959), granted the last of three reprieves to Billy Junior Nunn, who had been sentenced to death.23 Each reprieve was for a specified period of time. After Oregonians re-established the death penalty in 1920, Governor Ben W. Olcott (served Mar 3, 1919, to Jan 8, 1923), granted reprieves to three men sentenced to death. He acted on the basis that there was an appeal pending in the Oregon Supreme Court, in which the validity of the statutes and constitutional provisions prescribing the death penalty for murder in the first degree is attacked.
22

As Long relates, Governor West rejected the pleas of two delegations consisting of nearly 100 people urging him to commute the sentences of the four men to life in prison. Governor West argued that if the terrible horror of this penalty was shown to Oregonians, they would become revolted with executions and decide to banish them forever. (Although it is not mentioned in Longs account, Governor West did commute the death sentence of a fifth man to whom he had granted a reprieve). Oregonians did vote to abolish the death penalty at the next election, in 1914; by then, women had been given the vote, and the turnout in 1914 was nearly twice what it had been in 1912. But Oregonians soon re-enacted the death penalty, in 1920. The basis for all three of the reprieves was the same, which was a pending legal action discussed below, Eacret v. Holmes, involving the scope of the Governors clemency power. After the Supreme Court ruled in his favor, Governor Holmes commuted Nunns death sentence to life in prison.
23

59 Each reprieve lasted for a specified period of time about 14 months and were to expire soon after the dates that had been set for the men to be hanged. Governor Olcott renewed all three reprieves on February 2, 1922, lasting until July 7, 1922, on the basis that he had been informed by counsel that, if the challenge was unsuccessful before the Oregon Supreme Court, an appeal would be pursued to the United States Supreme Court. Vol 7 (1919-1922), Pardons, Remissions and Commutation of Sentence (hereafter Clemency Records), pp 499, 500, 518, 52123. Governor Olcott also started the practice of granting reprieves in cases of persons convicted of minor offenses (mostly violations of prohibition-era laws), in which the offender had been sentenced to a jail sentence and fine, with the fine to be worked off after completion of the jail sentence, at the rate, for example, of one additional day in jail for each $2.00 of the fine. Governor Olcott granted several reprieves to these offenders who remained in jail, in default of payment of their fines, so that they could earn money to pay their fines, at a monthly rate set by the reprieve. The two governors who succeeded Governor Olcott, Governor Walter M. Pierce (served Jan. 8, 1923, to Jan. 10, 1927) and Governor I. L. Patterson (served Jan. 10, 1927, to Dec. 21, 1929), continued this practice. In addition to reprieves that enabled jailed defendants to work to earn money to pay fines, these governors granted many reprieves before a jail sentence started, for a variety of reasons (for example, to work to support a family, to attend a funeral, or to get medical treatment unavailable in jail). Governor Olcott granted 15 of these

60 reprieves; Governor Pierce granted 78; and Governor I.L. Patterson granted 16.24 Vols 7-9, Clemency Records. Other governors granted only a small number of reprieves. Governor Julius L. Meier, for example (served Jan 12, 1931, to Jan 14, 1935) granted four reprieves in all. He granted one on May 1, 1932, for example, to James Borlan, who had been sentenced to jail, in order that he harvest his strawberry crop thereby saving himself and his family from being charges upon the county. The reprieve stated that it would extend to the 22nd day of July, 1932. Vol 10, Clemency Records, p 89. Governor W. W. Thayer (served Sept 11, 1878, to Sept 13, 1882), granted two reprieves, to men who had been sentenced to be hanged; each specified that it lasted for 35 days. Biennial Message of Gov. W. W. Thayer to the Legislative Assembly. Sometimes the most telling indication of a severe constitutional problem is the lack of historical precedent. Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S Ct 2566, 2586 (2012)(quotation marks, brackets, and ellipsis omitted). The salient aspect of all of the prior reprieves in Oregons history is that every one of them included an expiration date. This provides compelling confirmation of the idea, also supported by authorities already cited, that the common understanding of a reprieve was that it lasted only for a specified period of time. This understanding is consistent from the time an Oregon Governor first granted a reprieve, in 1874, These governors also granted a small number of reprieves on other grounds, sometimes to enable the governor to have more time to review a request for a pardon or a commutation. Governor Patterson granted a series of reprieves and renewals to a convicted murderer, James Willos, pending the outcome of a pending habeas corpus case.
24

61 through the last one granted before Governor Kitzhabers, in 1958. A temporary reprieve, which is how Governor Kitzhaber referred to his, is a misnomer, in that all reprieves are temporary. Many governors granted many pardons and commutations, but no reprieves at all. As best as counsel could determine, from review of the biennial clemency reports that are available and existing clemency records at the State Archives, eight governors have granted, since Statehood, a total of 120 reprieves (as well as several hundred pardons, commutations, remissions of fines, and pardons to restore citizenship). Making the reasonable assumption that every Governors clemency report to the Legislative Assembly, and other official records at the State Archives regarding grants of clemency are reliable, not a single reprieve issued in Oregon since Statehood has failed to specify an expiration date until now.25 Of course, all of these reprieves differ from the one at issue. Again, the reprieve here was only a part of the Governors general declaration of a moratorium on all executions during his service as Governor, in hopes that other actors the voters, or the Legislative Assembly will abolish the death penalty (after which, presumably, he would commute the death sentences of all death-row inmates, if the change in the law was prospective only). There were no circumstances peculiar to Mr. Haugen that would have made his being put to death unjust or inhumane, and

Although counsel has been unable to locate the clemency report of every governor, for missing years he has examined, at the State Archives, bound volumes recording the acts of clemency themselves, or the clemency records of individual governors.

25

62 the Governor did not claim that there were; rather, it was the fact of the death penalty itself and how it was being administered that, in the Governors opinion, made Haugens execution unjust. That is why Governor Kitzhabers reprieve did not, and could not specify an expiration date there were no circumstances that might be expected to pass, by the time of the reprieves deadline; rather, his ostensible reprieve was for an essentially different reason, that had nothing to do with plaintiffs particular situation. Under the authorities already cited, it is the nature of a reprieve that it never serves to annul a sentence, but only to suspend its carrying out for a certain period of time. To ensure that that is a reprieves function and that it accomplishes only that limited purpose, a reprieve must carry an expiration date. All of these are clues case law, secondary authorities, constitutional and statutory context, and historical practice regarding the correct meaning of the word reprieve as it used in Article V, section 14. Together they provide compelling evidence that a reprieve was not intended to confer greater powers on the Governor than to grant a reprieve, as that act has long been understood to mean. Accordingly, even if plaintiff is incorrect that his acceptance of the reprieve is required for it to be effective, the reprieve is unlawful for these additional reason. IV. Resolution of the issues presented is within this courts authority. Governor Kitzhaber has not argued that resolution of the issues presented is beyond the authority of the Judicial Department to determine. Plaintiff discusses

63 this issue nevertheless, because of the possibility that this Court might consider this to be a jurisdictional bar. In Eacret v. Holmes, 215 Or 121, 333 P2d 741 (1958), the parents of a murder victim brought an action against Governor Holmes, even before he had actually commuted the sentence of the convicted murdered involved, but only because he had in similar cases commuted death sentences because of his conscientious scruples, to which he had given public expression, against capital punishment. Eacret, 215 Or at 124. The parents sought a declaratory judgment that the Governor could not exercise his powers under Article V, section 14 of the Oregon Constitution because of his conviction that the death penalty is wrong, and that his discretion in the exercise of such power had to be guided by considerations of justice in the particular case. Eacret, 215 Or at 214. The trial court dismissed the complaint, and this Court affirmed, on the basis that the parents had no standing. This Court stated that there was no justiciable controversy when all a plaintiff sought was a declaration of what the law is, and that in effect, all the plaintiffs seek by their complaint is an advisory opinion respecting the proper exercise of the Governors pardoning power. Eacret, 215 Or at 125. A court lacked jurisdiction to enter a declaratory judgment, the Supreme Court said, when the plaintiff sought merely to vindicate a public right to have the laws of the state properly enforced and administered. 215 Or at 125, quoting McCarthy v. Hoan, 221 Wis 344, 266 NW 916 (1936).

64 There is no doubt that plaintiff has standing in this case. However, although it recognized that that was a sufficient basis upon which to dismiss the action, this Court went on, in extensive dicta, to discuss the scope of judicial review over a governors act of clemency. Putting [the plaintiffs lack of standing] to one side, this Court stated, it is not within judicial competency to control, interfere with, or even to advise the Governor when exercising his power to grant reprieves, commutations, and pardons. The principle of the separation of powers written into the constitution by Article III, 1 forbids it. Eacret, 215 Or at 126 (footnote omitted). The court stated a Governors discretion in deciding whether to grant clemency can not be controlled by judicial discretion. The courts have no authority to inquire into the reasons or motives which actuate the Governor in exercising the power, not can they decline to give effect to a pardon for an abuse of discretion. Eacret, 125 Or at 126. This Court offered that if the Governor should abuse his clemency power, the only recourse that the people have is at the polls or by seeking his removal from office through a criminal prosecution establishing his incompetency, corruption, malfeasance or delinquency in office. 215 Or at 128.26 In Eacret the Governor had not even issued a commutation yet, at the time the plaintiffs filed their action. Standing is an aspect of justiciability, Strunk v. PERB, 338 Or 145, 153, 108 P3d 1058 (2005), and the plaintiffs lack of any The Supreme Court referred to removal of the Governor from office under Article VII (amended), section 6 of the Constitution (formerly section 19 of the original Article VII), which provides for removal of a public officer on that basis, rather than by impeachment.
26

65 concrete interest in the matter alleged was an adequate basis for dismissing their action. That was the Supreme Courts holding. Accordingly, the courts remarks about the extent of judicial control over acts of clemency were pure dicta. See State ex rel Ricco v. Biggs, 198 Or 413, 434, 255 P2d 1055 (1953)(a dictum is something unnecessary to the decision). Dicta from a prior decision lack precedential force. State v. Counts, 311 Or 616, 631, 816 P2d 1157 (1991). Even if treated as binding law, however, those dicta do not control here. In Eacret, the plaintiffs asked for a declaration that would limit the Governor in the exercise of his discretion concerning an act of clemency. See Eacret, 125 Or at 125 (plaintiffs asked for declaration that the Governors discretion in the exercise of his clemency power must be limited in a certain way). That is not what is at issue in this case. In contrast here, Mr. Haugen asks this court to make a threshold determination concerning what is, and what is not, a reprieve. He seeks a declaration of what the essential aspects of a reprieve are; namely, whether its acceptance by the person in whose favor it is granted is required for the reprieve to be effective; whether or not a reprieve must last only for a specified duration; and whether a reprieve can lawfully serve to give the Legislative Assembly, or the People enough time to decide whether to abolish the death penalty, rather than of temporarily suspended the carrying out of a sentence for a time for a purpose peculiar to the prisoner involved, after which it can then be carried out. This threshold function of determining the correct definition of a reprieve as that term is used in the Constitution, must be within the judicial power. If there

66 were no judicial review whatsoever of the Governors clemency power, even to decide whether he has actually done what the Constitution permits him to do, the power would be subject to abuse without any effective recourse by the People. Through the simple device of attaching a certain label to his act, a governor could immunize an abuse of power from judicial examination. For example, a governor might claim that his constitutional power to remit fines includes the authority to remit some portion or all of a judgment entered in a civil case. Or, if some public official was removed from office through a criminal prosecution for malfeasance in office, as provided for in Article VII (amended), section 6 of the Constitution, a governor might claim the authority to pardon that offense, so that the official could remain in office. Perhaps a governor could even pre-emptively pardon himself and avoid removal through this procedure. For such potential abuses of power, the remedies referred to in Eacret as being the sole recourse of the people, might be completely ineffective. History teaches that a popular leader might be just as apt to commit some abuse of power as an unpopular one, so that his removal from office by popular vote might never occur. That is, the majority of the People might earnestly want their Governor to go on committing some particular abuse; in that event, it would be an essential function of our independent judiciary to enforce the Higher Law of the Constitution, which restrains the Governor to the same extent as it restrains all others, and serves to protect all of us, not just the majority who might want a popular Governor to continue in office. Similarly, neither might the other possible

67 remedy mentioned in Eacret removal from office through criminal prosecution be an effective remedy. It would have to be initiated, presumably, by either the Attorney General or a District Attorney. If those elected officials were aligned with a popular Governor who was abusing one of his powers, but in accordance with the desires of a majority of voters, the People, here again, would be left with no recourse whatsoever against an abuse of power. Our system demands that, under the circumstances, the judicial branch fulfill its essential function of resolving this important question involving, not just the meaning of a term used in the Constitution, but also the separation of powers between the executive and legislative branches. Not only the Governors clemency power is involved, as in Eacret, but other provisions of the Constitution as well, such as the take care that the laws be faithfully executed and suspension of the laws clauses already discussed. Moreover, the acceptance theory of acts of clemency that this Court has adopted also presupposes some degree of judicial review. If there was no review whatsoever, a governor could easily circumvent the acceptance element, and force a reprieve or pardon on an inmate when the law entitles him to reject it, simply by declaring as part of the pardon or reprieve itself that it had been accepted by the recipient, and then claiming the entire act to be immune from judicial examination. For these reasons, the Supreme Courts dicta in Eacret should be construed as being applicable only when someone has sought the courts assistance in overturning the Governors exercise of his discretion. That is not what Mr. Haugen

68 seeks to do in this case; rather, in seeks a judgment declaring the meaning of a constitutional provision that directly affects him. Unlike the plaintiffs in Eacret, he clearly has a concrete interest in how the dispute between the parties is resolved it is literally a life-or-death matter and therefore has standing. His claim is not that the Governor has abused his discretion, but that he has abused his power. This court therefore has authority to resolve the question presented. It is emphatically the province and duty of the judicial department to say what the law is. Marbury v. Madison, 5 US 137, 177 (1803). V. Conclusion. Governor Kitzhabers ostensible reprieve is a ruse by which he claims a power that, under the scheme of government established by our Constitution, he does not have. This Court should affirm the circuit courts judgment, either upon the ground adopted by that court, or upon the alternative basis argued in this brief. Respectfully submitted, /s/ Harrison Latto HARRISON LATTO Attorney for Plaintiff Gary D. Haugen

CERTIFICATE OF FILING AND SERVICE I hereby certify that I filed, and served the foregoing RESPONDENTS ANSWERING BRIEF on opposing counsel, by means of this Courts electronic filing and service system, on February 19. 2013.

/s/ Harrison Latto HARRISON LATTO Attorney for Respondent CERTIFICATE OF BRIEF LENGTH I hereby certify that the foregoing respondents answering brief is set forth in a 14-point proportional font, and that it contains 19,258 words. This number of words exceeds the 14,000-word limitation set by ORAP 5.05(2)(b)(i). I further certify that, on the day following filing of this proposed brief, respondent is filing a motion pursuant to ORAP 5.05(3)(a) asking that the Court permit an extended brief of this size to be filed. DATED this 19th day of February, 2013.

/s/ Harrison Latto HARRISON LATTO Attorney for Respondent