State v. Garza

• Decision Date: 12 July 1978
• Citation: 283 Or. 1,580 P.2d 1030
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Anicleto Humberto GARZA, Defendant-Appellant. TC 75-5801; CA 8562.
• Court: Oregon Supreme Court

Page 1030

580 P.2d 1030

283 Or. 1

STATE of Oregon, Plaintiff-Respondent, v. Anicleto Humberto GARZA, Defendant-Appellant.

TC 75-5801; CA 8562.

Supreme Court of Oregon,In Banc.

July 12, 1978.

Gary D. Babcock, Public Defender, Salem, and Gary L. Hooper, Deputy Public Defender, Salem, for petitioner.

No appearance contra.

Petition denied.

LENT, Justice, dissenting.

Insofar as I can ascertain, this is the first instance of written dissent from a decision of this court with respect to denial or allowance of a petition for review of a decision of the Court of Appeals; therefore, I do not take this step lightly. The publication of dissenting opinions is not at all uncommon in the Supreme Court of the United States where members of that court disagree with the denial of certiorari or the dismissal of an appeal. By way of example only, see: Colorado Springs Amusements, Ltd., T/A Velvet Touch, et al. v. Rizzo, Mayor of Philadelphia, et al., denying certiorari (Mr. Justice Brennan dissenting), 428 U.S. 913, 96 S.Ct. 3228, 49 L.Ed.2d 1222 (1976); Estelle, Corrections Director et al. v. Justice, U.S. District Judge et al., denying certiorari (Mr. Justice Rehnquist, joined by the Chief Justice and Mr. Justice Powell, dissenting), 426 U.S. 925, 96 S.Ct. 2637, 49 L.Ed.2d 380 (1976); Film Follies, Inc. v. Haas, District Attorney of Multnomah County, et al., dismissing appeal for want of substantial federal question (Mr. Justice Brennan, joined by Mr. Justice Stewart and Mr. Justice Marshall, dissenting), 426 U.S. 913, 96 S.Ct. 2617, 49 L.Ed.2d 368 (1976).

In 1971 this court adopted "some very general standards for passing on petitions for review," but they were abandoned about three years thereafter. See K. v. Health Division, 277 Or. 371, 377, 560 P.2d 1070, 1072 (Denecke, C. J., specially concurring). As the Chief Justice there noted, the function of a court of discretionary review is not primarily, at least, that of correcting error. A noted scholar of the subject has put the matter better than can this writer:

"It is almost axiomatic that every losing litigant in a one-judge court ought to have a right of appeal to a multijudge court. Most do not appeal, but the right is a protection against error, prejudice, and human failings in general. This relates to the appellate function of rectifying trial court errors, of seeing to it that litigants receive justice according to law. It is assumed correctly that a collegial body, removed from local pressures, sitting calmly in a quiet atmosphere with each judge thinking independently, is best able to catch mistakes and remedy them. The ideal of impartial justice can thus be approached.

"It is almost equally axiomatic that one appeal is enough to insure justice between parties. Perfect justice, especially from the point of view of the losing party, may not ensue from any appellate decision. A second appeal carries with it no assurance that justice will be more nearly approximated by mere repetition of collegial processes. The basic advantage of the appellate process, insofar as it increases the probability of fair treatment of the...