State ex rel. Davey v. Frankel

• Jurisdiction: Oregon
• Parties: STATE of Oregon ex rel. William Russell DAVEY, Plaintiff-Relator, v. The Honorable Kimberly C. FRANKEL, Circuit Court Judge for the County of Multnomah, Defendant. SC S36568.
• Citation: 823 P.2d 394,312 Or. 286
• Court: Oregon Supreme Court
• Decision Date: 12 December 1991

Page 394

823 P.2d 394

312 Or. 286

STATE of Oregon ex rel. William Russell DAVEY, Plaintiff-Relator, v.The Honorable Kimberly C. FRANKEL, Circuit Court Judge for the County of Multnomah, Defendant.

SC S36568.

Supreme Court of Oregon In Banc.

Argued and Submitted June 7, 1990.

Decided Dec. 12, 1991.

Janet Lee Hoffman, Portland, argued the cause for plaintiff-relator.With her on the brief and reply brief were Karen A. Steele and Hoffman, Matasar & Glaeser, Portland.

Janet A. Metcalf, Asst. Atty. Gen., Salem, argued the cause for defendant.With her on the answering brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol.Gen., Salem.

CARSON, Chief Justice.

Plaintiff-relator is the defendant in a Multnomah County Circuit Court criminal proceeding.He is charged in a four-count indictment with third degree rape and sodomy.The parties do not dispute that relator has complied with the statutory prerequisites entitling him to a pretrial hearing under OEC 412¹ to determine the admissibility of evidence of the victim's past sexual behavior.

The trial court judge, who is the defendant in this mandamus proceeding, ruled that relator was entitled to a pretrial OEC 412 hearing and that the hearing would be closed to the public pursuant to OEC 412(3)(b), which provides that "the court shall order a hearing in chambers to determine if such evidence is admissible."In this mandamus proceeding, relator seeks a writ requiring the trial court judge to vacate the order excluding the public from the OEC 412 hearing.²We issued an alternative writ of mandamus, requiring that the trial court judge vacate the order or show cause why she should not.Now (after pleading, briefing, and argument), we issue a peremptory writ of mandamus.

As a preliminary matter, we recognize that a writ of mandamus "shall not be issued in any case where there is a plain, speedy and adequate remedy in the ordinary course of the law."ORS 34.110.The parties dispute whether appeal would prove to be an adequate remedy in this case, precluding the issuance of the writ.

Unlike in the ordinary criminal or civil case, including cases involving various statutory evidentiary privileges and motions to suppress based on unconstitutional searches and seizures, the nature of the constitutional right that relator asserts under Article I, section 10, of the Oregon Constitution is not personal to him.Compare, e.g., OEC 503(2)(the client "has" the lawyer-client privilege);State v. Davis, 295 Or. 227, 233-35, 666 P.2d 802(1983)(the court will suppress evidence when necessary to vindicate an individual's constitutional right).As this court held in Oregonian Publishing Co. v. O'Leary, 303 Or. 297, 301-02, 736 P.2d 173(1987):

"[T]he command that '[n]o court shall be secret' is not a statement of an individual right that may be waived or compromised by the individual.[State ex rel. Oregonian Pub. Co. v. Deiz, 289 Or. 277, 282-83, 613 P.2d 23(1980).]Members of the media and the public may benefit from, and assert in court in their own behalf, the prohibition of section 10 on secret courts, but the prohibition is not a right that is personal to themselves.Rather, it 'is one of those provisions of the constitution that prescribe how the functions of government shall be conducted.'Deiz, 289 Or at 288[613 P.2d 23](Linde, J., concurring)."

If relator is not convicted at trial or if relator enters into a plea agreement, there can be no appeal to raise the issue of the constitutionality of the closed OEC 412 hearing.ORS 138.040, 138.050, and 138.053.Moreover, if relator is correct, the very fact that a closed hearing was held, no matter what follows thereafter, arguably is a separate harm that cannot be undone.In this unusual circumstance, then, appeal would not be an adequate legal remedy to vindicate the rights claimed to be at stake.Mandamus, therefore, may be appropriate, even though in our disposition we do not need to reach the constitutional claim.

Although the text of the statute is ambiguous, the state(in defending the constitutionality of the statute) and relator (in attacking it) agree that "in chambers" means "outside the presence of the public and the jury."Our review of the text of the "in chambers" provision, the intent of the legislature discernible from the text and context of OEC 412 generally, and the intent of the legislature discernible from the legislative history, leads us to a different conclusion.SeeORS 174.010, 174.020.

"In chambers" is not defined in the Oregon Evidence Code, nor is it a term that is susceptible of only one meaning.It could mean that the hearing must not take place in the courtroom but rather must take place in the judge's office, commonly referred to as the judge's "chambers."This meaning carries with it no necessary exclusionary scope, although it reasonably implies the exclusion of at least the jury, and it could result in some de facto exclusion of others by virtue of the location and size of the office.

"In chambers" instead could have a meaning akin to that of an "in camera " proceeding, which can entail various levels of mandatory exclusion, including exclusion of the public and exclusion of one or more parties or counsel.See, e.g., OEC 510(4)(c)(in camera proceedings relating to the disclosure of the identity of a government informant).

Moving from the term "in chambers" itself to the legislative intent discernible from the text and context of OEC 412 more generally, OEC 412 is a statute"the principal purpose of [which] is to protect victims of sexual crimes from the degrading and embarrassing disclosure of intimate details about their private lives."Legislative Commentary toOEC 412, reprinted in Kirkpatrick, Oregon Evidence 202 (2d ed. 1989).That goal is accomplished primarily by defining the scope of relevant admissible evidence narrowly and by conducting the admissibility hearing "in chambers."

Turning from the text and context of "in chambers" to its legislative history, we find the history to be of value in discerning the legislature's intent.The provision of the Rape Shield Law that is under attack in this case has evolved from a form of the statute first enacted in 1975.The 1975 law provided that "the court shall conduct [the admissibility] hearing out of the presence of the jury."Or.Laws 1975, ch. 176, § 2(4)(codified asORS 163.475(4)).In 1977, ORS 163.475 was amended to require the admissibility hearing to be held before trial except for good cause shown.Or.Laws 1977, ch. 822, § 1.The 1977amendments also added the additional term "and the public" to the phrase "out of the presence of the jury."Id.ORS 163.475 was replaced in 1981 with the adoption of the Oregon Evidence Code and the enactment of OEC 412 in its present form, requiring that the hearing be held "in chambers."Or.Laws 1981, ch. 892, § 31.

The 1981enactment of OEC 412 occurred against the backdrop of a then-recent decision of this court, holding that Article I, section 10, of the Oregon Constitution, forbade the closing of a juvenile court proceeding to the press.State ex rel. Oregonian Pub. Co. v. Deiz, 289 Or. 277, 613 P.2d 23(1980).Deiz was a significant decision, both for the fact that it was this court's first authoritative construction of Article I, section 10, and for its implications for a variety of traditionally closed proceedings.

At the time that the legislature considered and enacted OEC 412 in 1981, an appellate case was pending that questioned the effect of Deiz on the closed-hearing requirement of ORS 163.475, the predecessor to OEC 412.After the 1981 legislative session ended, a divided Court of Appeals upheld the validity of ORS 163.475, review was allowed by this court, and then review was dismissed by this court because of the limited scope of the issue presented by the ruling under a repealed statute.State v. Blake, 53 Or.App. 906, 633 P.2d 831(1981), rev. dismissed, 292 Or. 486, 640 P.2d 605(1982).³ In dismissing that proceeding, this court stated: "When we are required to apply the phrase 'in chambers' it will be necessary to judicially construe the phrase."292 Or. at 489, 640 P.2d 605.

The term "in chambers" was not discussed on the floor of either the Oregon House or Senate.The terms "in camera " and "in chambers" apparently were used interchangeably in committee discussions, with no precise meaning.The term "in chambers" appears in Federal Rule of Evidence 412, upon which OEC 412 was based in part, but the term is not defined in that rule, either.The dissent correctly notes that federal legislative history suggests that one intended purpose of an "in chambers" hearing under FRE 412 was to protect the privacy of victims of rape.The legislation that added the requirement for an ancillary hearing under the Federal Rules of Evidence, H.R. 4727, was, in fact, titled "Privacy Protection for Rape Victims Act of 1977."Its original author stated: "The purpose of [the legislation] is to make the prosecution of Federal rape cases more effective and equitable for rape victims, and to serve as a model statute for State laws."124 Cong.Rec. 36,256(1978)(statement of Senator Bayh).Professors Wright and Graham reasonably concluded from the floor debates that, in choosing the "in chambers" phrasing, "Congress was obviously concerned about the degree of privacy to be afforded rather than the physical location of the hearing."23 Wright and Graham, Federal Practice and Procedure 621 n. 18, § 5391(1980).It does not necessarily follow, however, that, by adopting federal wording, Oregon legislators shared the identical intent of their federal counterparts, nor does it necessarily follow that the Oregon Legislative Assembly adopted the federal wording out of a conviction that "in chambers" had a single meaning or that the only way to protect the privacy of rape victims was to exclude the public entirely from preliminary evidentiary hearings.

The Oregon...