Marteeny v. Brown

• Decision Date: 10 August 2022
• Docket Number: A178127
• Citation: 321 Or.App. 250,517 P.3d 343
• Parties: Douglas R. MARTEENY, District Attorney for Linn County, Oregon; and Patricia W. Perlow, District Attorney for Lane County, Oregon; on behalf of all Oregonians and Randy Tennant, an individual victim; Samuel Williams, an individual victim; Amy Jones, an individual victim; and Melissa Grassl, an individual victim, Plaintiffs-Relators-Respondents Cross-Appellants, v. Katherine BROWN, Governor of the State of Oregon; Colette Peters, Director of Oregon Department of Corrections; Oregon Department of Corrections; Dylan Arthur, Executive Director of Oregon Parole Board and Post-Prison Supervision; Michael Hsu, Chairperson of Oregon Parole Board and Post-Prison Supervision; Oregon Parole Board and Post-Prison Supervision; Joe O'Leary, Director of Oregon Youth Authority; and Oregon Youth Authority, Defendants-Respondents-Appellants Cross-Respondents, and Timothy Espinoza, Intervenor-Appellant.
• Court: Oregon Court of Appeals

321 Or.App. 250
517 P.3d 343

Douglas R. MARTEENY, District Attorney for Linn County, Oregon; and Patricia W. Perlow, District Attorney for Lane County, Oregon; on behalf of all Oregonians and Randy Tennant, an individual victim; Samuel Williams, an individual victim; Amy Jones, an individual victim; and Melissa Grassl, an individual victim, Plaintiffs-Relators-Respondents Cross-Appellants,
v.
Katherine BROWN, Governor of the State of Oregon; Colette Peters, Director of Oregon Department of Corrections; Oregon Department of Corrections; Dylan Arthur, Executive Director of Oregon Parole Board and Post-Prison Supervision; Michael Hsu, Chairperson of Oregon Parole Board and Post-Prison Supervision; Oregon Parole Board and Post-Prison Supervision; Joe O'Leary, Director of Oregon Youth Authority; and Oregon Youth Authority, Defendants-Respondents-Appellants Cross-Respondents,
and
Timothy Espinoza, Intervenor-Appellant.

A178127

Court of Appeals of Oregon.

Argued and submitted June 23, 2022
August 10, 2022

Benjamin Gutman, Solicitor General, Salem, argued the cause for appellants-cross-respondents. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Kirsten M. Naito, Assistant Attorney General.

Kevin L. Mannix, Salem, argued the cause for respondents-cross-appellants. Also on the briefs was Kevin L. Mannix, P. C.

Gabe Newland argued the cause for intervenor-appellant Timothy Espinoza. Also on the brief was Jody M. Davis.

Venetia Mayhew, Portland, argued the cause amicus curiae for Criminal Justice Reform Clinic at Lewis & Clark Law School. Also on the brief was Aliza Kaplan.

Before James, Presiding Judge, and Aoyagi, Judge, and Pagán, Judge.

JAMES, P. J.

321 Or.App. 253

In 2020 and 2021, Oregon Governor Kate Brown granted clemency to approximately 1,026 convicted felons, comprising three groups: (1) individuals "vulnerable to the effects of COVID-19," (2) individuals who had fought "the historic wildfires that ravaged the state around Labor Day 2020," and (3) 73 individuals who were sentenced as juveniles before the passage of Senate Bill

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(SB) 1008 (2019), section 25 of which was codified as ORS 144.397. SB 1008 made substantial changes to the prosecution and sentencing of juvenile offenders, including providing for early release hearings, conducted by the Board of Parole and Post-Prison Supervision (BOPPS), after 15 years of incarceration. The legislature did not make SB 1008 retroactive. The effect of the Governor's commutation order for these 73 individuals was to afford them the same procedure, under ORS 144.397, that would be afforded to a juvenile offender convicted today.

Two groups of relators—Douglas Marteeny, Linn County District Attorney, and Patricia Perlow, Lane County District Attorney (the DA relators), and four family members of victims of the crimes of which the some of the youth prisoners were convicted (the victim relators)—petitioned the Marion County Circuit Court for a writ of mandamus directing the Governor, the Department of Corrections (DOC), the Oregon Youth Authority (OYA), and BOPPS "to honor and follow all procedural and substantive provisions of Oregon law." In their legal arguments, relators argue that the commutations here were procedurally flawed, and unlawful for a variety of reasons that we detail below. But underlying those technical arguments exists a palpable emotion that deserves acknowledgement: relators feel that they have been denied justice.

As we detail below, the clemency power of presidents and governors traces its origins to the earliest days of English common law. The arguments and emotions present in this case echo through the centuries. The power to pardon, sitting within a singular executive—be they monarch, president, or governor—has always been controversial, seemingly at odds with legislative determination and judicial decision-making. Whenever it has been used, it has

321 Or.App. 254

been lauded by some, and condemned by others. We are not called here to judge the wisdom of the Governor's clemency of these 953 individuals; that is a political question. We are tasked solely with determining her authority to do so under Oregon law. And on that narrow question, we conclude that the commutations at issue here were a lawful exercise of the broad clemency power afforded Oregon governors by constitution and statute.

I. INTRODUCTION

The power of the Governor to pardon is enshrined in the Oregon Constitution. Article V, section 14 provides:

"[The Governor] shall have power to grant reprieves, commutations, and pardons, after conviction, for all offences 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 reprieve."

In furtherance of this constitutional power, the Oregon legislature has enacted several statutes. ORS 144.649 recognizes the broad power of clemency and states that power is subject to the "conditions and with such restrictions and limitations as the Governor thinks proper."¹ ORS 144.650 creates a series of procedures for pardon applications, including notification to district attorneys and victims, empowers the governor to gather information, and provides certain timing mechanisms.² ORS 144.660 requires

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the Governor to report clemency actions to the legislature.³

321 Or.App. 256

Finally, ORS 144.670 addresses recordkeeping after the Governor grants clemency.⁴

Relators’ arguments as to why the commutations here were unlawful can roughly be divided into thirds: their procedural argument, their delegation argument, and their jurisdiction argument. As to procedure, relators argue on cross-appeal that ORS 144.650, while not substantively limiting the Governor's clemency power, sets forth mandatory procedures that govern clemency applications. They then reason that a grant of clemency therefore requires an application, either from the applicant, or an application from the Governor to herself. As such, they argue, once an application is submitted, even an application from the Governor to herself, the Governor is obligated, per ORS 144.650, to seek the input of district attorneys and crime victims prior to a grant of clemency.

Relator's delegation argument advanced on appeal⁵ applies solely to the 73

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juvenile offenders. There, they argue that the Governor unlawfully delegated her clemency power to BOPPS by providing the juvenile offenders the right to a hearing of the kind established in ORS 144.397.

321 Or.App. 257

Finally, in their jurisdictional argument, also raised on appeal, which again only applies to the 73 juvenile offenders, relators argue that BOPPS lacked jurisdiction to hold hearings or consider release for offenders convicted as juveniles but sentenced before the passage of ORS 144.397, and that the Governor could not expand BOPPS's jurisdiction.

The circuit court rejected most of relators’ arguments, but as to the 73 juvenile offenders held that the Governor could not "lawfully expand administrative jurisdiction," and that her order had expanded the jurisdiction of BOPPS. The court issued a peremptory writ ordering BOPPS, its director, and its executive director not to "exercise authority purportedly provided by executive commutation order to conduct any release hearing or carry out any early release process for any offender who was found guilty of an offense while the offender was a juvenile, but whose offense was not within the prospective scope of SB 1008 (2019)."

Defendants—the Governor, BOPPS, DOC, and OYA⁶ —appeal, arguing that the trial court erred in concluding that relators had authority or standing to bring this mandamus action, and further erred in concluding that BOPPS lacked authority to carry out the hearings the clemency grants provided. Relators cross-appeal, arguing that none of the 1,026 clemency grants at issue here followed the required procedures. However, at oral argument they clarified that they do not assert that the failure to follow these procedures with respect to the COVID or wildfire grants renders them void, or invalid. Instead, as to the COVID and wildfire clemency grants, relators ask us to leave those undisturbed, but enjoin the Governor from any future clemency grants that do not follow the procedures of ORS 144.650. However, relators do appear to argue that the failure to follow procedures renders the 73 juvenile grants unlawful. Relators further defend the circuit court's reasoning, arguing that the Governor could not delegate the

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release decision to BOPPS, with the result that the grants of clemency to the youth offenders are at least unenforceable, if not void.⁷

The contours of the dispute so framed, we turn to our analysis. The resolution of these issues is complex. We begin our task, in Section II, with an examination of the pardon power historically. Following that, in Section III, we turn to the predicate issues of relators’ authority to commence this action, and standing, respectively. As we explain, our resolution of the standing question in this case requires some amount of reverse analysis—compelling us to evaluate the merits of relators’ arguments. Therefore, in Section IV we turn to the effect of ORS 144.650 and whether that statute provides a standing basis. Finally, continuing the reverse analysis approach begun in Section IV, we turn in Section V to focus on the whether the Governor improperly delegated release to BOPPS, and whether BOPPS had authority to hold hearings for the 73 juvenile offenders.

II. THE HISTORY OF THE PARDON POWER

Neither the Oregon constitutional clemency power, nor the statutes enacted surrounding

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it, are unique; they are but one small fragment in a long historical debate about pardons. In...