State v. Burleson

• Decision Date: 01 June 2007
• Docket Number: CC 060432571.,SC S054377.
• Citation: 342 Or. 697,160 P.3d 624
• Parties: STATE of Oregon, Plaintiff-Relator, v. David O. BURLESON, Defendant, and John Doe or Jane Doe, Adverse Party.
• Court: Oregon Supreme Court

160 P.3d 624

342 Or. 697

STATE of Oregon, Plaintiff-Relator, v. David O. BURLESON, Defendant, and John Doe or Jane Doe, Adverse Party.

CC 060432571.

SC S054377.

Supreme Court of Oregon.

Argued and Submitted May 7, 2007.

Decided June 1, 2007.

Original proceeding in mandamus.^*

Paul L. Smith, Assistant Attorney General, Salem, argued the cause for Plaintiff-Relator. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Marc D. Blackman, Ransom Blackman, Portland, argued the cause for Adverse Party. With him on the brief was Kendra M. Matthews.

Douglas E. Beloof, Margaret Garvin, Greg A. Rios, Kim Montagriff, Portland, and Erin

K. Olson, Law Office of Erin Olson, PC, Portland, filed a joint brief on behalf of amici curiae National Crime Victim Law Institute and Oregon Trial Lawyers Association.

Before DE MUNIZ, Chief Justice, and GILLETTE, BALMER, KISTLER, WALTERS, and LINDER, Justices.^**

DE MUNIZ, C.J.

In this mandamus proceeding, we consider whether the trial court abused its discretion in denying a motion to hold a grand jury witness (witness) in remedial contempt for refusing to identify the victims of an alleged crime. In denying the contempt motion, the trial court also implicitly denied the state's motion to compel the witness to identify the victims or to produce documents that would identify them. We conclude that the trial court correctly denied the contempt motion, but should have granted the motion to compel production of full and unredacted medical records in the possession of witness. We therefore shall issue a peremptory writ of mandamus.

I. FACTS AND PROCEDURAL HISTORY

At the behest of the Multnomah County District Attorney, a grand jury began an investigation of defendant, an anesthesiologist. Defendant had acted as an anesthesiologist for surgery performed by witness and his clinic. The staff at the clinic reported seeing defendant inappropriately touching two adult patients while they were anesthetized.

The clinic reported defendant's alleged behavior to the Board of Medical Examiners (BME) and gave the BME redacted copies of the victims' medical records. Because the matter involved criminal conduct, the BME referred the matter to the district attorney for prosecution. The district attorney filed an information charging defendant with two counts of sexual abuse. Before submitting the matter to the grand jury, the district attorney issued a subpoena duces tecum to witness for the victims' medical records. Witness gave the district attorney redacted copies of the medical records that did not identify the victims. The state filed a motion to compel, and witness opposed the motion.

The trial court held a hearing at which witness's counsel summarized the testimony that witness and his staff would offer. The evidence indicated that both victims were concerned about undergoing treatments. Witness also believed, as their treatment provider, that the victims would forgo necessary care if they learned what defendant had done.

The trial court denied the motion to compel as premature. The court concluded that witness may appear before the grand jury and explain to the grand jury why he had provided only redacted copies of the medical records to the district attorney. The grand jury then could decide whether to accept that explanation. The court also determined that the records should be kept confidential because of their relationship to grand jury proceedings.

The state issued another subpoena duces tecum to witness. Witness appeared before the grand jury. The grand jury directed witness to disclose the identities of the victims and to produce unredacted records. After witness refused, the grand jury requested that witness be held in contempt.

The state then moved the trial court to impose a remedial sanction of contempt. At that time, the state also renewed its motion to compel. As to the merits of the contempt motion, the trial court understood the underlying issue to be whether it should issue an order requiring witness to provide the testimony and to produce the evidence that the grand jury sought. The state argued that the names of the victims were necessary to the investigation because, at a minimum, the state needed to question those victims about the effect of anesthesia on them and whether they had any recollection of the events in question. In addition, according to the state, such information was necessary to determine what kind of crime defendant may have committed and how the state would characterize and charge that crime. See, e.g., ORS 163.427(1)(a)(C) (whether victim was "physically helpless" may constitute element of crime of first-degree sexual abuse).

The trial court issued a written order in which it made findings of fact, indicating that the victims were being treated for conditions that would require additional care. The trial court found that disclosing to the victims the fact of the inappropriate contact might cause them to forgo necessary medical care in the future.

In its conclusions of law, the trial court determined that the information sought—the names of the victims—was information that was both relevant and not privileged, but the court further determined that such information "[was] not necessary to the return of a valid indictment." The trial court also opined that the information sought "may be irrelevant to the resolution of criminal charges the grand jury may return against [defendant] because he may seek to resolve those charges by agreement or stipulation, as he did in the investigation by the Board of Medical Examiners." The trial court then concluded that, under ORS 136.617, even if the information was relevant and not privileged, it did not have to order witness to testify if it found "that to do so would be clearly contrary to the public interest."¹ The trial court concluded that the facts "demonstrate[d] that it would be clearly contrary to the public interest to require [witness] to provide the identification information * * * being sought by the grand jury because the immediate adverse consequences of doing so substantially outweigh the grand jury's limited need for this information." As a result, the trial court denied the state's motion to hold witness in remedial contempt. Implicitly, based on its analysis under ORS 136.617, it also denied the motion to compel.

The state filed a petition in this court for an alternative or peremptory writ of mandamus, seeking to compel the trial court to enforce the grand jury subpoena. This court issued an alternative writ, directing the trial court to vacate its order or, in the alternative, show cause for not doing so within 14 days. The trial court did not vacate its order. The parties then fully briefed this matter, and the court heard oral argument before the matter was submitted for decision.

II. APPROPRIATENESS OF MANDAMUS REMEDY

Mandamus is an extraordinary remedy, Sexson v. Merten, 291 Or. 441, 445, 631 P.2d 1367 (1981), and may serve only to enforce a known, clear legal right, Ross v. County Court of Marion, 147 Or. 695, 700, 35 P.2d 484 (1934). This court, in its discretion, may accept original jurisdiction in mandamus proceedings. Or Const, Art VII (Amended), § 2; ORS 34.120(2). Ordinarily, the court will not issue a writ of mandamus if there is a plain, speedy, and adequate remedy in the ordinary course of the law, such as an appeal. See ORS 34.110 (providing standard).

Witness argues that the state has an adequate remedy by appeal, citing ORS 33.125(2). That statute provides that a party against whom a judgment of contempt has been imposed may challenge that sanction by appeal. In fact, ORS 33.125(1) requires that a trial court enter a judgment if it imposes a contempt sanction. In this matter, the trial court did not impose the state's requested remedial contempt sanction, much less enter a judgment. If the trial court refuses to impose remedial contempt sanctions, requested before entry of judgment in a related proceeding, then the trial court must include its ruling on contempt as part of the judgment in the underlying case. ORS 33.125(3)(b). Here, the underlying case is the criminal proceeding against defendant. See ORS 33.055(3) (motion to impose remedial sanctions "shall be filed in the proceeding to which the contempt is related, if there is a related proceeding"). The state thus could not appeal the trial court order at issue here until the trial court entered a final judgment in defendant's criminal case. Likewise, an order denying a motion to compel grand jury testimony is not immediately appealable. See State v. Threet, 294 Or. 1, 7, 653 P.2d 960 (1982) (motion to compel grand jury testimony under ORS 136.617 not appealable as "special statutory proceeding"). As a result, the state faces irreparable injury, because the absence of the names of the victims could undermine the effectiveness of the investigation and prosecution. We conclude that the state does not have an adequate remedy by appeal. Hence, it is appropriate for us to consider this matter in mandamus.

III. STANDARD OF REVIEW

A. Mandamus

Although a writ of mandamus "may require [a] court, corporation, board, officer or person to exercise judgment, or proceed to the discharge of any functions, it shall not control judicial discretion." ORS 34.110. In a mandamus proceeding, this court may consider whether a trial court's actions are outside the permissible range of discretionary choices open to the trial court. State ex rel Keisling v. Norblad, 317 Or. 615, 623, 860 P.2d 241 (1993). Within that framework, a claim of legal error underlying a trial court's exercise of discretion may be raised in a mandamus proceeding. Id.

B. Contempt

The standard of review in matters of remedial contempt, when the sanction does not include confinement, requires a review of the facts for clear and convincing evidence. See ORS 33.055(11) (providing standard). As a general rule, a contemnor...