State v. Cookman
| Decision Date | 15 August 1996 |
| Citation | 324 Or. 19,920 P.2d 1086 |
| Parties | STATE of Oregon, Petitioner on Review, v. Frederick William COOKMAN, Respondent on Review. CC 91-1524; CA A73459; SC S41424. |
| Court | Oregon Supreme Court |
Michael C. Livingston, Assistant Attorney General, Salem, argued the cause for petitioner on review. With him on the briefs were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.
Richard Lee Barton, of Barton and Associates, Portland, argued the cause and filed the briefs for respondent on review.
Gayle A. Shields, Michael A. Greenlick, and Ronald M. Fishback, Portland, filed a brief on behalf of amicus curiae Oregon Criminal Defense Lawyers Association.
Before CARSON, C.J., and GILLETTE, FADELEY, GRABER, and DURHAM, JJ. *
Defendant was indicted for committing three felonies between June 1 and September 1, 1986: (1) using a child in a display of sexually explicit conduct, ORS 163.670; (2) dealing in depictions of a child's sexual conduct, former ORS 163.673 (1987), repealed by Or Laws 1995, ch 768, § 16; and (3) sexual abuse in the first degree, ORS 163.425 (1985). According to the indictment, all victims were under 18 years of age at the time of the crimes. A warrant for defendant's arrest issued on October 10, 1991.
Defendant demurred, arguing that the state was time-barred from prosecuting him. 1 On the state's appeal, 3 a divided Court of Appeals, sitting in banc, affirmed. State v. Cookman, 127 Or.App. 283, 873 P.2d 335 (1994). The lead opinion stated that "revival of a lapsed prosecution is so extremely unfair that it transgresses the recognized due process principle of 'fundamental fairness.' " 127 Or.App. at 286.
Specifically, defendant argued that his prosecution was barred by the three-year statute of limitations that was in effect when he allegedly committed the crimes, ORS 131.125 (1985). After that three-year period had expired, the legislature amended ORS 131.125 to extend the limitations period to six years with respect to the particular crimes at issue. Defendant argued that, assuming that the legislature intended for the amendments to apply to revive a previously time-barred prosecution, that application of the law would violate the state and federal constitutional prohibitions against ex post facto laws. 2 The trial court allowed the demurrer and entered an order dismissing the indictment.
A concurrence agreed with the outcome, but would not reach the due process issue, because "the trial court's judgment can and should be affirmed on state constitutional grounds." Id. at 290, 873 P.2d 335 (Leeson, J., concurring). The concurrence then stated that ORS 131.125(2), as amended in 1991 and as applied to defendant, "deprives him of a vested and complete procedural defense" in violation of the Oregon Constitution's prohibition against ex post facto laws. Id. at 293, 873 P.2d 335.
A four-judge dissent stated that defendant had not raised a due process issue at trial, id. at 293, 873 P.2d 335 (De Muniz, J., dissenting); that, in any case, the majority's due process analysis was in error, id. at 295-96, 873 P.2d 335; and that the dissent would have held that the ex post facto provisions of the state and federal constitutions do not bar the prosecution, id. at 299, 873 P.2d 335.
The state petitioned for review, and we allowed the petition. For the reasons that follow, we affirm the decision of the Court of Appeals and the order of the circuit court.
ORS 131.105 provides that a "criminal action must be commenced within the period of limitation prescribed in ORS 131.125 to 131.155." Before 1989, ORS 131.125(2)(a) provided that a prosecution must be commenced within three years after the commission of a felony other than murder or manslaughter. That provision was in effect when defendant allegedly committed the crimes at issue. Under it, the state had to commence its prosecution of defendant by, at the latest, September 1, 1989. It did not. A prosecution is "commenced" when a "warrant or other process is issued." ORS 131.135. That occurred, in this case, on October 10, 1991. This prosecution thus is untimely under the pre-1989 version of ORS 131.125.
In 1989, the legislature amended ORS 135.125 to lengthen the period of limitations for certain felonies, including the ones for which defendant was indicted, to six years from the time the crime was committed, if the victim was less than 18 at the time of the crime. Or Laws 1989, ch 831, § 1. Those amendments took effect on October 3, 1989. However, by that date, the period of limitations in which the state had to prosecute defendant under the pre-1989 statute already had expired. 4
In 1991, the legislature again amended ORS 131.125. Among those amendments was section 1 of an Act contained in Oregon Laws 1991, chapter 388:
Section 2 of the same Act provided:
"The amendments to ORS 131.125 by section 1 of this Act apply to all causes of action whether arising before, on or after the effective date of this Act, and shall act to revive any cause of action barred by ORS 131.125 (1989 Edition) if the action is commenced within the time allowed by ORS 131.125 section 1 of this Act." 5
The effective date of the Act was September 29, 1991. It is the provisions of Section 2 on which the state relies to argue that the lengthened criminal statute of limitations applies retroactively to revive prosecutions previously barred before 1989.
The Court of Appeals held that the legislature intended the 1991 amendments to revive the present prosecution, even though that prosecution was barred by the pre-1989 version of ORS 131.125, rather than by "ORS 131.125 (1989 Edition)." 127 Or.App. at 285, 873 P.2d 335. The interpretive question here is whether the legislature intended to revive only prosecutions barred by the 1989 version of ORS 131.125 or also to revive prosecutions barred by the pre-1989 version of ORS 131.125.
In interpreting a statute, we seek to discern the legislature's intent. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610, 859 P.2d 1143 (1993). At the first level of analysis, we consider text and context. Ibid.
Section 2 of the 1991 Act, quoted above, begins by providing that the amendments to the statutes of limitation "apply to all causes of action whether arising before, on or after the effective date of this Act." (Emphasis added.) With respect to crimes, a "cause of action" arises when the crime is committed. The broad sweep of the first half of Section 2 covers the crimes alleged here. The second half of Section 2 creates an ambiguity, however, by specifying that the amendments are meant to "revive any cause of action barred by ORS 131.125 (1989 Edition )." (Emphasis added.) The context does not resolve that ambiguity in the text.
Because it is not clear from text and context whether the legislature intended the 1991 amendments to revive a prosecution otherwise barred by the pre-1989 version of ORS 131.125, we turn to legislative history. See PGE, 317 Or. at 611-12, 859 P.2d 1143 (setting forth method). We have examined the legislative history, but it provides no direct answer or insight to resolve this question. Therefore, we move to the third level of analysis by resorting to general maxims of statutory construction. See ibid. (setting forth method).
The most apt maxim here is that the court will attempt to determine how the legislature would have intended the statute to apply had it considered the issue. See Steelman-Duff, Inc. v. Dept. of Transportation, 323 Or. 220, 235, 915 P.2d 958 (1996) (). With that maxim in mind, we believe that the 1991 legislature would have intended the statute to revive prosecutions that otherwise would First, it is quite clear that the substantive 1991 amendments were intended to make it easier for the state to prosecute the listed crimes. Second, the basic thrust of Oregon Laws 1991, chapter 388, section 2, is to take advantage of retroactivity as broadly as possible. Third, the legislature had before it the opinion of at least one member to the effect that retroactive revival of a time-barred prosecution did not violate constitutional proscriptions against ex post facto laws. Tape recording, House Judiciary Family Justice Subcommittee, February 13, 1991, Tape 31, Side A at 60-67 (comments of Representative Edmunson). In the circumstances, we see no reason why the legislature would have intended that the advantage conferred on the state be limited to revival of prosecutions barred only by the 1989 version of the statute of limitations. We hold, therefore, that the 1991 amendments are to be read to revive all prosecutions of the listed crimes when those prosecutions would have been time-barred under the 1989 or the pre-1989 version of ORS 131.125, provided that the prosecution is commenced within the time allowed by the 1991 amendments.
be barred by the pre-1989 version of ORS 131.125, as well as prosecutions that otherwise would be barred by the 1989 version.
This court considers state constitutional claims before considering federal constitutional claims. State v. Kennedy, 295 Or 260, 262, 666 P.2d 1316 (1983); ...
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