Johnson v. Premo

• Decision Date: 04 March 2020
• Docket Number: A160579
• Citation: 302 Or.App. 578,461 P.3d 985
• Parties: Martin Allen JOHNSON, Plaintiff-Appellant, v. Jeff PREMO, Superintendent, Oregon State Penitentiary, Defendant-Respondent.
• Court: Oregon Court of Appeals

302 Or.App. 578

461 P.3d 985

Martin Allen JOHNSON, Plaintiff-Appellant,

v.Jeff PREMO, Superintendent, Oregon State Penitentiary, Defendant-Respondent.

A160579

Court of Appeals of Oregon.

Argued and submitted July 12, 2017

March 4, 2020

Daniel J. Casey, Beaverton, argued the cause for appellant. With him on the opening and reply briefs was Robert L. Huggins, Jr. Martin Allen Johnson filed the supplemental brief pro se.

Leigh A. Salmon, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Dustin Buehler, Assistant Attorney General.

Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.^*

DeHOOG, P. J.

When a post-conviction petitioner raises claims of inadequate assistance of counsel, the attorney-client privilege gives way, permitting disclosure of privileged communications that are "relevant to an issue of breach of duty by the lawyer * * * to the client." OEC 503(4)(c).¹ That exception is narrow, however, and, as relevant here, it "applies only during the pendency of the post-conviction case, including appeal, and only as is reasonably necessary to defend against petitioner’s specific allegations of breach of duty." Longo v. Premo , 355 Or. 525, 539, 326 P.3d 1152 (2014). Petitioner’s appeal invites us to explore the contours of that rule, but, as we explain below, we conclude that his appeal is moot. Accordingly, we dismiss petitioner’s appeal.

Petitioner appeals the denial of a post-judgment motion for a protective order that he made after the post-conviction court had awarded him relief in the form of a new trial in his underlying criminal case. The post-conviction court ordered that relief in 2013. Petitioner filed the post-judgment motion at issue here two years later, in 2015. The original post-conviction judgment granting petitioner a new trial has since been affirmed on appeal. See Johnson v. Premo , 361 Or. 688, 399 P.3d 431 (2017) (concluding that petitioner was entitled to a new trial on criminal charges due to ineffective assistance by his trial counsel).

The substance of petitioner’s claim in the present case is that the post-conviction court erred in denying his post-trial request for, among other things, various forms of relief based upon his understanding of the Supreme Court’s decisions in Longo and in Brumwell v. Premo , 355 Or. 543, 326 P.3d 1177 (2014), both of which addressed the issue of discovery-related pre-trial protective orders in post-conviction proceedings. Because his motion, like those of the petitioners in Longo and Brumwell , sought to limit the state’s use of discovery materials and other materials he asserts are subject to the attorney-client privilege, petitioner contends that the holdings of those cases control here.

We need not decide that issue, however, because of our ultimate conclusion that petitioner’s appeal is moot. That conclusion follows from our ongoing duty to evaluate the justiciability of petitioner’s appeal. As in all cases, before deciding the merits of petitioner’s appellate arguments, we must consider whether any jurisdictional impediments preclude us from reaching them. See Walton v. Board of Parole , 267 Or. App. 673, 676, 341 P.3d 828 (2014) (noting appellate court’s "independent obligation to consider matters concerning jurisdiction sua sponte "). The superintendent has identified one potential impediment, questioning whether the post-conviction court’s denial of petitioner’s post-judgment motion is an appealable order. We, however, have identified a second potential impediment: Events occurring since petitioner filed his appeal appear to have rendered his appeal moot. For the reasons that follow, we focus on the latter concern, ultimately concluding that petitioner’s case no longer presents a justiciable controversy, now that the new trial that the post-conviction court awarded him as relief has concluded. That conclusion renders it unnecessary to further consider the appealability of the challenged order, or, for the most part, the substance of petitioner’s appellate argument. We therefore dismiss this case as moot.

In order to explain that disposition, some background on this case and petitioner’s first criminal trial is required.² Petitioner was convicted of aggravated murder based on the 1998 killing of a 15-year-old girl, and his conviction and sentence of death were affirmed on direct appeal. State v. Johnson , 340 Or. 319, 131 P.3d 173, cert. den., 549 U.S. 1079, 127 S.Ct. 724, 166 L.Ed.2d 564 (2006). The state’s theory of the case was that petitioner had given the victim morphine

and subjected her to sexual intercourse, after which he had strangled her to death and had thrown her body off a bridge in Clatsop County. Johnson v. Premo , 361 Or. at 690-92, 399 P.3d 431. The defense’s theory of the case was that the victim had been alive when petitioner threw her off the bridge; counsel supported that theory by presenting expert testimony that the victim’s death had resulted from drowning. Id. at 690, 399 P.3d 431.³

In this post-conviction proceeding, which petitioner initiated in 2006, he argued that he had received inadequate assistance of counsel because defense counsel had failed to investigate and develop a defense theory that the victim had died of a morphine overdose before he threw her off the bridge; relatedly, petitioner claimed, counsel had performed deficiently in failing to provide expert testimony to support such a theory. Id. at 693-95, 399 P.3d 431.⁴ Petitioner first requested a protective order for attorney-client privileged materials in September 2009, prior to disclosing those materials in pretrial discovery. Relying on ORCP 36 C,⁵ petitioner requested a "protective order limiting the use of privileged information revealed during discovery herein to petitioner’s pending post-conviction relief case." The post-conviction court denied the protective order.⁶ Notably, the post-conviction court issued that ruling well before the Supreme Court had decided Longo and Brumwell , and therefore well before their rulings indicating that a pretrial order limiting the state’s redisclosure of attorney-client privileged materials obtained in discovery may be warranted in post-conviction proceedings.

In April 2013, at the conclusion of petitioner’s post-conviction trial, the court granted him relief from his convictions, concluding that he had received inadequate assistance of counsel in various respects. The state appealed from the judgment, and petitioner cross-appealed, assigning error to the post-conviction court’s conclusion that he had not proven his other claims for relief. Petitioner did not assign error to the denial of his pretrial motion for an ORCP 36 C protective order.

While the appeal from the merits judgment was pending before us, the Supreme Court issued Longo and Brumwell . Thereafter—as noted above, two years after the post-conviction court had granted him relief—petitioner filed the pro se motion at issue here. Citing Longo and Brumwell , petitioner sought, among other things, a protective order for "any and all" materials protected by the attorney-client privilege in this case. Petitioner’s motion did not identify specific discovery materials to which the privilege applied but asked for a protective order covering "PCR legal materials," which petitioner evidently viewed as including, among other things, testimony and exhibits in the post-conviction proceeding, as well as trial court and appellate court opinions in the case. Although not clearly stated, petitioner’s motion can be understood to ask for relief that encompassed restrictions on all of the following: the state’s disclosure, to witnesses in preparation for a retrial on the criminal charges, of materials it had received in the course of the post-conviction proceedings; the state’s reliance on those materials in identifying trial witnesses and preparing their testimony at retrial; and the state’s review or other reliance on those materials in anticipating who may testify on petitioner’s behalf and in preparing to cross-examine or rebut that anticipated testimony on retrial. The motion can further be understood to request that the post-conviction court appoint counsel from the Attorney General’s office to provide advice and assistance to defense counsel and the Washington County District Attorney’s office on retrial to ensure compliance with those restrictions and otherwise prevent the use of attorney-client privileged information in the course of his retrial. The post-conviction court denied petitioner’s post-judgment motion as "untimely, abusive, repetitive, and not within the jurisdiction" of the post-conviction court. This appeal ensued.

During the pendency of this appeal and after the Supreme Court had affirmed the post-conviction court’s grant of a new trial, retrial proceedings on the criminal charges against petitioner commenced in Washington County Circuit Court; those proceedings are discussed in greater detail below. In light of those proceedings, we asked the parties to submit memoranda addressing whether this case has become moot, given the nature of petitioner’s claims for relief. Both petitioner and the superintendent have responded that we should not focus on the specifics of what petitioner requested in his pro se motion, but instead on what he asks for on appeal, which both parties liken to a protective order of the sort at issue in Longo and Brumwell . But, as we explain below, those cases arose in a much different procedural context than the present case; thus, in our view, the parties’ focus is misdirected.

We pause at this point to recap Longo and Brumwell , as the differences between those cases and this one are significant to our disposition here. Both Longo and Brumwell were mandamus cases involving interlocutory appeals at the discovery stage in post-conviction proceedings; in each case, the post-conviction court had been...