State v. Alexander
| Decision Date | 19 February 1980 |
| Docket Number | G-78-46,G-78-39,G-77-103,G-78-45,G-78-48,G-78-41 and G-77-105,G-78-43,Nos. G-77-104,s. G-77-104 |
| Citation | 607 P.2d 181,44 Or.App. 557 |
| Parties | STATE of Oregon, Appellant, v. Leo ALEXANDER, Respondent. STATE of Oregon, Appellant, v. Clifford ALEXANDER, Respondent. STATE of Oregon, Appellant, v. Michael A. BRISBOIS, Respondent. ;to;;to;to; CA 13568. |
| Court | Oregon Court of Appeals |
Robert C. Cannon, Asst. Atty. Gen., Salem, argued the cause for appellants. With him on the briefs were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.
Edward J. Jones, Oregon City, argued the cause and filed the brief for respondents.
Before BUTTLER, P. J., and GILLETTE and ROBERTS, JJ.
In these cases, which were consolidated below, the defendants, who claim to be enrolled members of the Yakima tribe, were cited by both Washington and Oregon authorities for allegedly violating a variety of statutes which regulate fishing. Oregon authorities cited each defendant for fishing during a closed season, see ORS 506.129, ORS 509.011(1)(c), OAR 635-35-200, operating a set net during a closed season, see ORS 509.011(1)(b), OAR 635-35-025(3), illegally possessing food fish during a closed season, see ORS 509.006, ORS 509.011(1) (a), OAR 635-35-200, and fishing with an unidentified set net, see ORS 506.129(1)(b), OAR 635-35-050(5). 1
While the record does not disclose clearly whether each defendant was cited for more than one violation of Washington fishing laws, the parties agree that each defendant was cited and prosecuted for violating RCW 77.16.030, which prohibits the possession of a game fish during a closed season. In December, 1977, each of the defendants was convicted in Washington of that offense and, perhaps, other fishing offenses.
Thereafter, defendants moved to dismiss the Oregon charges on the basis of former jeopardy. The state appeals from an order granting that motion and dismissing all of the Oregon charges.
The trial court found that all of the fishing violations charged by both Washington and Oregon arose out of the defendants' conduct on the Columbia River during the early morning hours of July 12, 1977, that all of them arose out of the same transaction, or criminal episode, see ORS 131.505(4), and that all of them were misdemeanors. In deciding that former jeopardy precluded Oregon from proceeding against defendants, the trial court apparently applied the principles enunciated in State v. Brown, 262 Or. 442, 497 P.2d 1191 (1972), as urged by defendants, even though the charges arising out of the same transaction could not have been tried in the same court in Oregon. We disagree with that analysis and, while the result reached by the trial court may be correct, we cannot make that determination on this record. For reasons hereinafter stated, we remand these cases for further proceedings.
In the typical former jeopardy case an offense is committed within the legislative and territorial jurisdiction of one or more sovereigns in violation of an applicable law. The question in those cases is whether the defendant may be prosecuted by both sovereigns; the answers, discussed below, have been different depending on the relationship between the two sovereigns.
But that is not the situation here. We do not know whether the offenses occurred within the State of Washington or the State of Oregon, but only that they occurred on the Columbia River, which forms the boundary between the two states. In the absence of an overriding federal act curing the problem, only the state in which the offenses occurred would have jurisdiction to prosecute the offender. In many cases the locus of the offense may be established clearly as being in one state or the other, but where, as here, the boundary is a river channel which is subject to change, the problem could become insurmountable. As an apparent curative, the Oregon Admission Act and the act organizing the Territory of Washington grant concurrent jurisdiction to Oregon and Washington over all offenses committed on the Columbia River where it forms a common boundary between the two.
The state contends that the "dual sovereign" line of authority controls and the constitutional prohibition against double jeopardy 2 does not apply: both sovereigns may prosecute defendants. Defendants contend that where, as here, two states are involved, the "dual sovereign" rule is inapplicable and, once they were prosecuted by the State of Washington, all charges arising out of the same transaction or criminal episode are barred under State v. Brown, supra, as falling within the protection against double, or former, jeopardy. We conclude that the answer lies somewhere between and depends on whether the Oregon Admissions Act permits prosecution by each state under the circumstances of these cases.
The United States Supreme Court has not decided whether the prosecution of the same offense by two states constitutes double jeopardy within the meaning of the Fifth Amendment to the United States Constitution. The state relies on a variety of federal cases for the proposition that "prosecutions under the laws of separate sovereigns do not, in the language of the Fifth Amendment, 'subject (the defendant) for the same offence to be twice put in jeopardy.' " United States v. Wheeler, 435 U.S. 313, 317, 98 S.Ct. 1079, 1083, 55 L.Ed.2d 303 (1978). The federal doctrine, upon which the state relies, is known as the "dual sovereignty" rule. The rationale of the rule has been expressed as follows:
" United States v. Wheeler, supra, 435 U.S. at 317, 98 S.Ct. at 1083. 3
Applying the "dual sovereignty" rule, the United States Supreme Court has held that " * * * a federal prosecution does not bar a subsequent state prosecution of the same person for the same acts, and a state prosecution does not bar a federal one." Ibid. (Footnote omitted.) Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959); Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959); see also United States v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314 (1922). The Court also has held that the Navajo Tribe and the United States are separate sovereigns so that a tribal prosecution does not bar a subsequent federal prosecution growing out of the same incident. United States v. Wheeler, supra.
However, the Court in Wheeler noted that "(t)he 'dual sovereignty' concept does not apply * * * in every instance where successive cases are brought by nominally different prosecuting entities." 435 U.S. at 318, 98 S.Ct. at 1083. For example, that Court has held that a federal court and a territorial court, and a city and the state of which it is a political subdivision are not "dual sovereigns." Grafton v. United States, 206 U.S. 333, 27 S.Ct. 749, 51 L.Ed. 1084 (1907); Puerto Rico v. Shell Co., 302 U.S. 253, 58 S.Ct. 167, 82 L.Ed. 235 (1937); Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970).
The United States Supreme Court has not ruled on whether the "dual sovereignty" doctrine applies when two states have concurrent jurisdiction over a boundary river and both states seek to prosecute for a single offense. A reasonable argument may be made that within the federal union the delicate relationship between states is more analogous to the federal-state relationship than it is to a state's relationship to its local municipalities, and therefore the same dual sovereignty rule should apply, permitting multiple prosecutions. However, we need not decide that question if we can resolve the problem short of the constitutional issue.
Accordingly, we look to the Admission Act for a possible solution.
As stated above, the two states' concurrent jurisdiction over offenses committed on the Columbia River originated in the Oregon Admission Act and in a federal act organizing the Washington Territory. 4 If those acts are construed to permit either state to prosecute an offender for the same offense committed on the river, but once one of the states has exercised its jurisdiction the other may not thereafter prosecute the offender, it is not necessary to reach the double jeopardy constitutional issue.
This view of the purpose of concurrent jurisdiction over a boundary river seems to be the common one. In State v. Holden, 46 N.J. 361, 363, 217 A.2d 132, 133 (1966) () the Court noted:
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