State v. Freeland, No. TC

• Court: Supreme Court of Oregon
• Writing for the Court: LINDE; JONES; Jones
• Citation: 295 Or. 367,667 P.2d 509
• Decision Date: 26 July 1983
• Docket Number: No. TC
• Parties: , 44 A.L.R.4th 371 STATE of Oregon, Respondent on review, v. Johnny Dale FREELAND, Petitioner on review. C81-04-32282; CA A22721; SC 28856. *

Page 509

667 P.2d 509 295 Or. 367, 44 A.L.R.4th 371 STATE of Oregon, Respondent on review,
v.
Johnny Dale FREELAND, Petitioner on review. No. TC C81-04-32282; CA A22721; SC 28856. Supreme Court of Oregon,
In Banc ^*. Argued and Submitted Nov. 1, 1982.
Reargued and Resubmitted June 8, 1983.
Decided July 26, 1983.

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[295 Or. 368-A] Virginia L. Linder, Salem, argued and submitted brief for respondent on review. With her on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.

James S. Coon, Portland, argued and submitted brief for petitioner on review. With him on the brief was Sobel & Coon, Portland.

John L. Collins, McMinnville, filed a brief for amicus curiae Or. Dist. Attys. Ass'n.

Diane L. Alessi, Portland, filed a brief for amicus curiae Or. Criminal Defense Lawyers Ass'n. With her on the brief was John Henry Hingson, III, Oregon City.

[295 Or. 369] LINDE, Justice.

Oregon law provides that a person may be charged with a felony either by grand jury indictment or by a district attorney's information filed in circuit court after a showing of probable cause in a preliminary hearing before a magistrate, unless the accused waives either indictment or the preliminary hearing. Or. Const. art. VII (amended), § 5(3) to (5); ORS 135.070-135.185. Administration of the system of initiating a prosecution, including this choice of procedure, ordinarily is in the hands of the district attorney, except in the rare instance when a grand jury may indict upon information presented by someone else. In State v. Clark, 291 Or. 231, 630 P.2d 810, cert. den. 454 U.S. 1084, 102 S.Ct. 640, 70 L.Ed.2d 619 (1981) and State v. Edmonson, 291 Or. 251, 630 P.2d 822 (1981), we held that because a preliminary hearing is a privilege of significant importance to an accused, the prosecutor's choice whether to proceed with or without a preliminary hearing must comply with the constitutional command that no law shall grant "any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens." Or. Const. art. I, § 20.

Clark and Edmonson had been indicted and been denied preliminary hearings, but because they did not show that this procedure

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was not applied "upon the same terms" that would "equally" be followed to charge others in the same position, their convictions were affirmed. In the present case, defendant made the showing of unequal procedure to the satisfaction of the circuit court, which dismissed the indictment. The Court of Appeals reversed, 58 Or.App. 163, 647 P.2d 966 (1982), and we allowed review to address the issues of administering preliminary hearings "upon the same terms" for similarly situated defendants that could not be reached in State v. Clark and State v. Edmonson.

I. Principles of Clark and Edmonson.

Before turning to the facts in this case, we summarize what was decided in Clark and Edmonson.

A claim of impermissibly unequal use of authority, like other claims of illegality, must be tested first against the legal source of the authority and second against the state constitution before reaching a claim under the United States Constitution. 291 Or. at 233, n. 1, 630 P.2d 810; State v. Smyth, 286 Or. 293, 297, [295 Or. 370] 593 P.2d 1166 (1979). ¹ The test of unequal treatment under Or. Const. art. I, § 20, is not always the same as the tests articulated from time to time under the federal equal protection clause, although the clauses are sufficiently similar that compliance with article I, section 20 usually will also satisfy the 14th amendment. ² 291 Or. at 243-44, 630 P.2d 810; Hewitt v. SAIF, 294 Or. 33, 43, 653 P.2d 970 (1982). See, e.g., Jarvill v. City of Eugene, 289 Or. 157, 184, 185, 613 P.2d 1, cert den 449 U.S. 1013, 101 S.Ct. 572, 66 L.Ed.2d 472 (1980).

In particular, article I, section 20, expressly guarantees equality of privileges to each individual "citizen" as well as to any "class of citizens." A person therefore need not complain of being the victim of an invidiously discriminatory classification in order to invoke this guarantee, although such discrimination also is forbidden.

"[T]his section is a guarantee against unjustified denial of equal privileges or immunities to individual citizens at least as much as against unjustified differentiation among classes of citizens. It also was early established that the guarantee reached forbidden inequality in the administration of laws under delegated authority as well as in legislative enactments....

"One branch of article I, section 20, and decisions under it thus call for analysis whether the government has made or applied a law so as to grant or deny privileges or immunities to an individual person without legitimate reasons related to that person's individual situation."

291 Or. at 239, 630 P.2d 810, citing State v. Cory, 204 Or. 235, 282 P.2d 1054 (1955); White v. Holman, 44 Or. 180, 74 P. 933 (1904); In re Oberg, 21 Or. 406, 28 P. 130 (1891). District attorneys, like other officials, are "held to constitutional limits in the exercise of the discretion entrusted to them.... Their discretionary decisions, even if not subject to judicial 'supervision,' are not immune from judicial scrutiny." 291 Or. at 245, 630 P.2d 810, citing State v. Jones, 279 Or. 55, 566 P.2d 867 (1977); In re Rook, 276 Or. 695, 556 P.2d 1351 [295 Or. 371] (1976); State v. Langley, 214 Or. 445, 323 P.2d 301, cert. den. 358 U.S. 826, 79 S.Ct. 45, 3 L.Ed.2d 66 (1958).

A complaint of unequal treatment, however, cannot rest simply on the existence of discretion alone. Clark and Edmonson attacked the coexistence of alternative charging procedures, one providing and the other denying a preliminary hearing at the choice of the prosecutor, as intrinsically denying defendants the equal protection of

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the laws, on the grounds that led the Supreme Court of California in Hawkins v. Superior Court, 22 Cal.3d 584, 150 Cal.Rptr. 435, 586 P.2d 916 (1978) to order that indicted defendants must be afforded preliminary hearings equally with those charged by information. State v. Clark rejected that wholesale attack. It recognized that preliminary hearings were an important privilege to which one accused of crime is entitled "upon the same terms" as others: "There is no question that the opportunity of a preliminary hearing is a 'privilege' within the meaning of the constitutional guarantee, and potentially one of great practical importance." 291 Or. at 241, 630 P.2d 810. ³ But "upon the same terms" does not mean that [295 Or. 372] every accused must be afforded a preliminary hearing or none can be. The preliminary hearing itself is not constitutionally required where probable cause to prosecute is shown to the satisfaction of a grand jury. "The two methods are capable of valid administration, if the 'terms' on which one or the other method is used are defensible under the constitutional guarantees of equal treatment." State v. Edmonson, 291 Or. at 253, 630 P.2d 822.

Finally, State v. Clark held that defensible terms of valid administration need not be promulgated as rules, although of course they might take that form. 291 Or. at 246, 630 P.2d 810. ⁴ But the standards or criteria used, whether or not stated as rules, must pass muster under those guarantees of equal treatment. 291 Or. at 239-240, 630 P.2d 810.

II. Consistent application of discretionary policies.

Because Clark and Edmonson only rejected an attack on the dual system of felony prosecution as inherently unequal, holding that the system could withstand this attack if administered to provide equal privileges to persons similarly situated, those decisions could offer little guidance upon what terms

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the privilege of a preliminary hearing must "equally belong to all citizens." The present case, in which the challenge is to the terms upon which the prosecution based its refusal of a preliminary hearing to defendant, calls for a further analysis.

The provision allowing alternative ways to charge was added to the constitution in 1974. Article VII, section 5(5) provides:

[295 Or. 373] "The district attorney may charge a person on an information filed in circuit court if, after a preliminary hearing before a magistrate, the person has been held to answer upon a showing of probable cause that a crime punishable as a felony has been committed and that the person has committed it, or if the person knowingly waives preliminary hearing."

It is undisputed that this provision was meant to leave discretion to choose between the two procedures to the district attorney. According to the explanations in the Official Voters' Pamphlet, the proposed system was "based on the discretion of the district attorney" so as to assure "that each county can follow the system best suited to its needs." 1974 Official Voters Pamphlet 14-15. The committee designated pursuant to ORS 254.210, in its explanation, stated:

"The proposed change keeps the traditional grand jury function in our system of criminal justice but makes it possible to use it in a more flexible manner within the limited discretion of the district attorney."

Id. at 13. The change was designed to reduce the previously mandatory use of grand jury indictments so as to promote both "efficiency" and also "fairness." Id. at 14.

It is because of this background that reasons of efficiency are permissible criteria for the choice between the alternative procedures and that, although the criminal code and article I, section 20, apply throughout the state, each county or district remains free, in the absence of statute, to choose the charging practices most suitable for its circumstances and to change them as experience may dictate. As the Voters Pamphlet clearly stated, however, the objective of the 1974 amendment was to promote "fairness" as well as "efficiency." It therefore does not support the notion that discretion under article VII, section 5(5), described in...