Hunter v. State

• Decision Date: 07 September 1988
• Docket Number: Nos. 38367,s. 38367
• Citation: 761 P.2d 502,306 Or. 529
• Parties: Vance Eugene HUNTER, Respondent on Review, v. STATE of Oregon and City of Bend, Petitioners on Review, Walter Edward WOLDEN, Respondent on Review, v. STATE of Oregon and City of Bend, Petitioners on Review. TC/38667; CA A37983 (Control)CA A37984; SC S34130.
• Court: Oregon Supreme Court

Page 502

761 P.2d 502

306 Or. 529

Vance Eugene HUNTER, Respondent on Review, v. STATE of Oregon and City of Bend, Petitioners on Review, Walter Edward WOLDEN, Respondent on Review, v. STATE of Oregon and City of Bend, Petitioners on Review.

TC Nos. 38367/38667; CA A37983 (Control)[ ]CA A37984; SC S34130.

Supreme Court of Oregon,

In Banc.

Argued and Submitted Nov. 4, 1987.

Decided Sept. 7, 1988.

Robert M. Atkinson, Asst. Atty. Gen., Salem, argued the cause for petitioners on review. With him on the petition for review were Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen., and David Schuman and Stephen F. Peifer, Asst. Attys. Gen., Salem.

Brian J. MacRitchie, Bend, argued the cause for respondents on review.

CARSON, Justice.

The issues presented in these consolidated cases are whether persons convicted of violating municipal ordinances have the right to seek post-conviction relief pursuant to the Post-Conviction Hearing Act, ORS 138.510 to ORS 138.680, and, if not, whether the Act denies them a privilege or immunity in violation of Article I, section 20, of the Oregon Constitution or the equal protection clause of the Fourteenth Amendment to the United States Constitution.

Petitioners in both cases pleaded guilty to and were convicted of Driving Under the Influence of Intoxicants (DUII), a violation of the Bend Uniform Traffic Code. The applicable provision states, "[a] violation of the provisions of the Oregon Vehicle Code in ORS Chapters 153, 481, 482, 483, 484, 485 and 487 in [sic] an offense against the City of Bend." Bend Code § 6.015.

Some time after the convictions, each petitioner filed a petition for post-conviction relief. Both cases were dismissed and the cases were consolidated on appeal. The Court of Appeals held that the Post-Conviction Hearing Act would unconstitutionally deprive those convicted under municipal law of a privilege in violation of Article I, section 20, of the Oregon Constitution if the procedures of that Act could not be used by those persons. Hunter v. State of Oregon, 84 Or.App. 698, 735 P.2d 1225 (1987). The Court of Appeals, in order to interpret the Act so that it would not be found unconstitutional, departed from its previous decisions and held that the phrase "under the laws of this state" included municipal ordinances.

We hold that those convicted of violating municipal ordinances have not been "convicted of a crime under the laws of this state" and are not entitled to use the procedures of the Post-Conviction Hearing Act. We further hold that the Act is not unconstitutional either as written or as applied in these cases. We reverse the decision of the Court of Appeals and affirm the dismissals by the circuit court.

We first must decide whether petitioners were "convicted of a crime under the laws of this state." ORS 138.510(1). The Court of Appeals previously had held that those convicted under a municipal ordinance were not convicted under a law of this state. LaMarche v. State of Oregon, 81 Or.App. 216, 725 P.2d 378, rev.den. 302 Or. 299, 728 P.2d 531 (1986); Skaggs v. State of Oregon, 69 Or.App. 337, 684 P.2d 1256, rev. den. 298 Or. 150, 690 P.2d 506 (1984); Rutherford v. City of Klamath Falls, 19 Or.App. 103, 526 P.2d 645 (1974).

In Rutherford, the Court of Appeals stated that the Post-Conviction Hearing Act itself contained indications that the Act was not available to provide relief for those convicted of municipal offenses. The court noted that the availability of habeas corpus was not abolished for municipal cases. 19 Or.App. at 105, 526 P.2d 645. The court also noted that, if the petitioner is not in custody, the defendant in a post-conviction case is the State of Oregon and no provision is made for a municipality to be joined as a defendant. ¹ 19 Or.App. at 106, 526 P.2d 645. Finally, the Court of Appeals noted that the Act provides for appointment of counsel, yet there is no indication that the counties should pay for legal challenges when the cities receive the financial benefits. 19 Or.App. at 107, 526 P.2d 645.

In this case below, the Court of Appeals expressly overruled Rutherford, Skaggs and LaMarche. The only basis for the holding that a conviction for violation of a municipal ordinance is a conviction under the laws of this state was that any other interpretation of ORS 138.510(1) would violate Article 1, section 20. We find the rationale in Rutherford more persuasive. In Jarvill v. City of Eugene, 289 Or. 157, 164, 613 P.2d 1 (1980), in reference to the phrase "tax laws of this state," we held that, "[t]he plain and natural meaning of this phrase is that the tax law must be enacted by the state governmental authority." We think that the reference to "laws of this state" in ORS 138.510(1) similarly means laws enacted by the state government, not by a municipality. Those convicted under a municipal ordinance are not convicted under the laws of this state. See City of Portland v. Dollarhide, 300 Or. 490, 496-502, 714 P.2d 220 (1986).

Having found that petitioners were not convicted under the laws of this state, we must determine whether their exclusion violates either Article I, section 20, or the equal protection clause of the Fourteenth Amendment. In the present case, petitioners make no claim that they impermissibly were singled out or denied the privilege of post-conviction relief. See City of Salem v. Bruner, 299 Or. 262, 268-71, 702 P.2d 70 (1985); State v. Freeland, 295 Or. 367, 370, 667 P.2d 509 (1983). The question is whether the distinction made between those convicted under state law and those convicted under municipal law is a classification solely created by the statute or whether the "law's disparate treatment of persons or groups [is] by virtue of characteristics which they have apart from the law in question." State v. Clark, 291 Or. 231, 240, 630 P.2d 810 (1981). In this situation, the characteristics which determine access to post-conviction relief are not, like gender or ethnic...