State v. Clark, No. TC

• Court: Supreme Court of Oregon
• Writing for the Court: Before DENECKE; LINDE; TONGUE
• Citation: 291 Or. 231,630 P.2d 810
• Docket Number: No. TC
• Decision Date: 23 June 1981
• Parties: STATE of Oregon, Respondent, v. Andrew CLARK, Petitioner. 35188, CA 15862; SC 27251.

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630 P.2d 810 291 Or. 231 STATE of Oregon, Respondent,
v.
Andrew CLARK, Petitioner. No. TC 35188, CA 15862; SC 27251. Supreme Court of Oregon. Argued and Submitted Dec. 3, 1980.
Decided June 23, 1981.

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[291 Or. 232-B] Robert J. McCrea of Morrow, McCrea & Divita, P.C., Eugene, argued the cause and filed a brief for petitioner.

John C. Bradley, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James M. Brown, Atty. Gen. and Walter L. Barrie, Sol. Gen.

Before DENECKE, C.J., and TONGUE, LENT, LINDE, PETERSON and CAMPBELL, JJ.

[291 Or. 233] LINDE, Justice.

Defendant was convicted of theft in the second degree. On appeal, he assigned as error the trial court's denial of two pretrial motions to dismiss the indictment on constitutional grounds. One of these motions claimed that defendant was denied equal protection of the law because he was prosecuted and potential codefendants were given immunity without reference to any standards for the disparate treatment, and because he could not obtain the testimony of witnesses by granting them immunity from the use of their testimony against themselves, as the state may do or assist other defendants to do. The second motion to dismiss the indictment claimed that the failure to accord defendant a preliminary hearing after his indictment denied him due process and equal protection of the law under a number of state and federal constitutional provisions. ¹ The Court of Appeals rejected these constitutional claims, 47 Or.App. 389, 615 P.2d 1043 (1980), and we allowed review. We affirm the conviction.

I. Denial of a preliminary hearing.

Oregon law provides for charging a person with a felony either by grand jury indictment or by a district attorney's information. Article VII (amended), section 5, of the Oregon Constitution permits a district attorney to charge a person on an information filed in [291 Or. 234] circuit court only after a showing of probable cause in a preliminary hearing before a magistrate, unless the person waives indictment or waives the preliminary hearing. ² At the preliminary hearing a panoply of procedural guarantees

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protect the person's right to contest the evidence of probable cause that he has committed a felony and his right not to become a witness against himself. ³ These include the right to the aid of counsel, ORS 135.070, 135.075; the right to subpoena witnesses, ORS 135.085; cross-examination of adverse witnesses, ORS 135.090; the right to make an unsworn statement subject only to limited questioning by the magistrate, ORS 135.095, 135.100; and ultimately, the right to the judgment of a trained judicial officer whether probable cause for the prosecution has been shown, based on evidence which the person to be charged could challenge or meet by opposing evidence or by his own statement, if he chose to do so. ORS 135.175, 135.185.

No comparable procedural rights are accorded a person charged before a grand jury. To the contrary, the statutes provide that only the prosecutor and a witness actually under examination shall be present during grand jury sittings, unless a court orders the presence of a reporter of testimony or other necessary attendants, ORS 132.090; the grand jury need not hear any evidence for the defendant, ORS 132.320(4); and it may find an indictment upon the apparent strength of prosecution evidence "if unexplained or uncontradicted," although the defendant had no opportunity to test, explain, or contradict the evidence. ORS 132.390.

[291 Or. 235] Unquestionably the procedures afforded in a preliminary hearing are potentially important to an accused, whether or not they are advantageous in a particular instance. In theory, at least, the preliminary hearing is designed to make it possible for an accused to avoid defending against an unjustified charge, even if more often it only permits him to learn something of the prosecution's case against him that would be hidden in grand jury secrecy. Cf. ORS 135.855(1)(c); State ex rel. Johnson v. Roth, 276 Or. 883, 557 P.2d 230 (1976); compare State v. Hartfield, 290 Or. 583, 624 P.2d 588 (1981). In his original motion, defendant included a reference to "due process," presumably intending to invoke that clause of the federal fourteenth amendment. ⁴ Grand jury indictment itself can hardly be argued to contravene due process, being included in the same fifth amendment by which "due process" entered constitutional law, and defendant offers no support or serious argument for the proposition that the evolution of due process now requires an opportunity to contest the factual basis of an indictment in a pretrial judicial hearing. Defendant's chief claim, however, is not that an opportunity to discover the prosecution's case or to contest it before trial is constitutionally mandated, but rather that a law which does provide such an opportunity must be applied according to constitutional standards, including the constitutional standards of equality. That much, of course, is true. ⁵ We therefore turn to those constitutional standards.

Article I, section 20. Defendant does not spell out the distinct premises of his "equal protection" attack, relying only on the decision of the Supreme Court of [291 Or. 236] California in

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Hawkins v. Superior Court, 22 Cal.3d 584, 150 Cal.Rptr. 435, 586 P.2d 916 (1978). The Hawkins decision held that indicted defendants must be afforded preliminary hearings equally with defendants charged by an information in order to meet the equality guarantee of California's constitution. ⁶ Before turning to the Hawkins court's analysis, therefore, it is necessary to review the comparable Oregon guarantee.

Article I, section 20 provides:

"No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens."

This guarantee, taken like most of article I from Indiana's constitution of 1851, has been a part of the Bill of Rights since Oregon became a state in 1859. Antedating the Civil War and the equal protection clause of the fourteenth amendment, its language reflects early egalitarian objections to favoritism and special privileges for a few rather than the concern of the Reconstruction Congress about discrimination against disfavored individuals or groups. ⁷ See City of Klamath Falls v. Winters, 289 Or. 757, 619 P.2d 217 (1980), quoting State ex rel. Reed v. Schwab, 287 Or. 411, 417, 600 P.2d 387 (1979). ⁸ The original concern of article I, section 20, with special privileges or "monopolies" was the basis of early decisions concerning the licensing of sailors' boarding houses, White v. Holman, 44 Or. 180, 74 P. 933 [291 Or. 237] (1904), or fishing rights, e. g., Monroe v. Withycombe, 84 Or. 328, 165 P. 227 (1917). Because the clause would ordinarily be invoked by persons who wanted a privilege or immunity for themselves rather than to withdraw it from others, its protective effect was soon held to extend to rights against adverse discrimination as well as against favoritism. See, e. g., State v. Wright, 53 Or. 344, 100 P. 296 (1909) (reversing a conviction for unlicensed peddling because peddlers of other goods did not require licenses), and its use against discriminatory or otherwise "unequal" adverse treatment is long established. See City of Klamath Falls v. Winters, supra, and cases cited at 289 Or. 775-777, 619 P.2d 217.

More important to the present case is the dual test of the proscribed kinds of discrimination or unequal treatment. The clause forbids inequality of privileges or immunities not available "upon the same terms," first, to any citizen, and second, to any class of citizens. In other words, it may be invoked by an individual who demands equality of treatment with other individuals as well as by one who demands equal privileges or immunities for a class to which he or she belongs. Because constitutional attacks under article I, section 20

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mostly have been directed at laws prescribing general rules for one or another class of subjects, these attacks, as well as most judicial opinions, have been phrased in the rhetoric of forbidden "classification," but that is only one of two distinct grounds of attack. A classic example of the other, individual, basis is Altschul v. State, 72 Or. 591, 144 P. 124 (1914), which invalidated a law permitting a named person to sue the state.

This dual coverage of article I, section 20, was recognized in the first case under the section, In re Oberg, 21 Or. 406, 28 P. 130 (1891). A constable convicted of arresting a sailor on board a vessel as an absconding [291 Or. 238] debtor, contrary to a law prohibiting such arrests, claimed that the law was unconstitutional as a special immunity for seamen. In rejecting his claim, this court said:

"All sailors of a seagoing vessel within the prescribed limits are treated alike, and entitled to enjoy the privileges or immunities granted. The act prescribes the same rule of exemption to all persons placed in the same circumstances. It does not grant to a sailor immunity from arrest for debt, and refuse it to his neighbor, if they be similarly situated. The same privilege or immunity is extended by the act to all in the same situation. Any person who is a sailor may enjoy the immunity, and any citizen desiring such immunity may have it in the words of the constitution, 'upon the same terms,' by becoming a sailor. While one may enjoy the benefit of the exemption, and another may not, this results not because the statute favors one, and discriminates against another, but because one brings himself within its terms, and the other does not."

21 Or. at 408, 28 P. 130. The court quoted the Iowa court, stating of a comparable statute in McCormick v. Rusch, 15 Iowa 127, 129 (1863):

"It does not prescribe one rule for one citizen or soldier, and another for his neighbor, if they be in the same situation. We have...