Eacret v. Holmes

• Decision Date: 24 December 1958
• Citation: 215 Or. 121,333 P.2d 741
• Parties: John W. EACRET and Lillie M. Eacret, Appellants, v. Robert D. HOLMES, Governor of the State of Oregon, Respondent.
• Court: Oregon Supreme Court

Page 741

333 P.2d 741

215 Or. 121

John W. EACRET and Lillie M. Eacret, Appellants, v. Robert D. HOLMES, Governor of the State of Oregon, Respondent.

Supreme Court of Oregon, In Banc.

Argued Dec. 10, 1958.

Decided Dec. 24, 1958.

Walter D. Nunley, Medford, argued the cause and filed a brief for appellant.

Peter S. Herman, Asst. Atty. Gen., argued the cause for respondent. With him on the brief was Robert Y. Thornton, Atty. Gen.

LUSK, Justice.

Plaintiffs are the parents of Alvin William Eacret, deceased, who was murdered by one Billy Junior Nunn. Nunn was convicted of the murder and sentenced to death. His conviction was affirmed by this court, State v. Nunn, 212 Or. 546, 321 P.2d 356.

The defendant is Robert D. Holmes, Governor of the State of Oregon.

Plaintiffs filed this suit for the purpose of obtaining a declaratory judgment limiting and guiding the Governor in the exercise of the power granted to him by Article V, § 14 of the Oregon Constitution, which reads:

'He shall have power to grant reprieves, commutations, and pardons, after conviction, for all offenses 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 further 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.'

The circuit court sustained a demurrer to the complaint and entered an order of dismissal. The plaintiffs have appealed.

The allegations of the complaint are to this effect: The defendant has in similar cases commuted death sentences because of his conscientious scruples, to which he has given public expression, against capital punishment. The defendant publicly stated at the time of the affirmance of the conviction of Nunn by this court that he would immediately begin to consider the commutation of the death sentence of Nunn. He will commute such sentence unless restrained from doing so. The plaintiffs claim the protection of various provisions of the State and Federal constitutions which, it is alleged, will be violated if the threatened action of the defendant is not restrained. The prayer is for a temporary order restraining the defendant from commuting Nunn's sentence until the final determination of this suit, and for a declaration by the court which in substance would inform the Governor that he must not exercise his power to commute a sentence of death because of his conviction that the death penalty is wrong, but that his discretion in the exercise of such power must be guided solely by considerations of justice in the particular case. There was no prayer for an order permanently enjoining the defendant from commuting the sentence of Billy Junior Nunn.

It must be at once apparent that the plaintiffs have no standing to maintain this suit. The wrong of which they complain--if there be a wrong--is public in character. The complaint discloses no special injury affecting the plaintiffs differently from other citizens. The fact that it was their son for whose murder Nunn has been sentenced to die does not alter the case, even though it be natural that they should feel more deeply upon the subject than other members of the general public. Punishment for crime is not a matter of private vengeance, but of public policy. Any violation of constitutional rights which might be supposed to flow from what is asserted to be an 'unconstitutional' exercise by the executive of the pardoning power would affect equally all the people of the state, rather than the plaintiffs in a different and special way. The principles governing the question are well established, and may be found clearly stated in Putnam v. Norblad, 134 Or. 433, 293 P. 940.

For these and other reasons the complaint fails to disclose a justiciable controversy under the declaratory judgments law, ORS 28.010 et seq. No right, status, or legal relation of the plaintiffs is involved, and no legal interest of theirs will be affected by the action of the Governor. There is no case for declaratory relief where the 'plaintiff seeks merely to vindicate a public right to have the laws of the state properly enforced and administered.' McCarthy v. Hoan, 221 Wis. 344, 266 N.W. 916, 917. See, also, Perry v. City of Elizabethton, 160 Tenn. 102, 22 S.W.2d 359; Thomas v. Riggs, 67 Idaho 223, 175 P.2d 404; Heisey v. Port of Tacoma, 4 Wash.2d 76, 102 P.2d 258. The plaintiffs have a difference of opinion with the Governor, but that does not of itself make a justiciable controversy. American Federation of Labor v. Bain, 165 Or. 183, 215, 106 P.2d 544, 130 A.L.R. 1278. They ask for no relief except that the court declare what the law is. But, as Mr. Borchard says, 'a private citizen is deemed to have an insufficient interest in a declaration of what the law is.' 1 Borchard, Declaratory Judgments (2d ed.) 51-52. In effect, all that the plaintiffs seek by their complaint is an advisory opinion respecting the proper exercise of the governor's pardoning power.

Putting all this to one side, it is not within judicial competency to control, interfere with, or even to advise the Goverror 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 ¹ forbids it.

As demonstrated in the scholarly opinion of Mr. Justice Harvey in Jamison v. Flanner, 116 Kan. 624, 228 P. 82, 35 A.L.R. 973, the pardoning power is not a power inherent in any officer of the state or any department of the state, but by the constitutions of nearly all the states, it is conferred upon the executive or upon the executive acting in conjunction with a council, board or commission. Article V, § 14 of our constitution was taken from the Indiana Constitution of 1851. 1 Burns' Ind.Ann.Stat., Art. V, § 17. The Indiana Constitution, however, contained a provision that the legislature might create a council without whose advice and consent the governor would have no power to issue pardons in any case except such as should by law be left to his sole power. A proposal for a similar council was made in the Oregon Constitutional Convention of 1857, but was rejected notwithstanding argument that the pardoning power was abused elsewhere. Carey, A History of the Oregon Constitution, 222-223. If there could be doubt otherwise, this action leaves none as to the intention of the framers of the constitution to make...