State v. Kennedy

Decision Date06 July 1983
Citation666 P.2d 1316,295 Or. 260
PartiesSTATE of Oregon, Respondent on Review, v. Bruce Alan KENNEDY, Petitioner on Review. TC 79-12-34399; CA 17729; SC 29394.
CourtOregon Supreme Court

[295 Or. 261-A] David Frohnmayer, Atty. Gen., Salem, argued the cause and filed the response for the respondent on review. With him on the brief was William F. Gary, Sol. Gen., Salem.

Donald C. Walker, Portland, argued the cause and filed the petition for review.

Rex Armstrong, of Kell, Alterman & Runstein, Portland, filed a brief for amicus curiae American Civil Liberties Union Foundation of Oregon, Inc.

John Henry Hingson III, Oregon City, filed a brief for amicus curiae Oregon Criminal Defense Lawyers Ass'n.


LINDE, Justice.

Convicted of theft, defendant obtained a reversal in the Court of Appeals because his trial followed a mistrial brought on by what the court described as "flagrant overreaching" by the prosecutor. 49 Or.App. 415, 418, 619 P.2d 948 (1980). After this court denied review, 290 Or. 551 (1981), the state obtained a writ of certiorari from the Supreme Court of the United States. The Supreme Court reversed the decision insofar as it rested on prior double jeopardy and due process clauses of the United States Constitution and remanded the case to the Court of Appeals. Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). On remand, the Court of Appeals reconsidered the nature of the prosecutor's misconduct and its consequences under Oregon law and this time affirmed the conviction. 61 Or.App. 469, 657 P.2d 717 (1983). We allowed review to examine the court's assumption that Oregon law concerning retrials after prosecutor-induced mistrials, a question that first reached this court in State v. Rathbun, 287 Or. 421, 600 P.2d 392 (1979), is identical to the view of the federal double jeopardy clause expressed by the majority of the Supreme Court in this case. We conclude that Oregon law is not identical but nevertheless leads to an affirmance of this conviction.

Before reaching the merits, we take up the procedural history that brings the issue before this court.

I. Procedure

The history of this case demonstrates the practical importance of the rule, often repeated in recent decisions, that all questions of state law be considered and disposed of before reaching a claim that this state's law falls short of a standard imposed by the federal constitution on all states. See State ex rel. Adult & Family Services v. Bradley, 295 Or. 216, 666 P.2d 249 (1983); State v. Davis, 295 Or. 227, 666 P.2d 802 (1983); Suess Builders Co. v. City of Beaverton, 294 Or. 254, 267, 656 P.2d 306 (1982); Cole v. Department of Revenue, 294 Or. 188, 190, 655 P.2d 171 (1982); Hewitt v. SAIF, 294 Or. 33, 41-42, 653 P.2d 970 (1982); State v. Caraher, 293 Or. 741, 653 P.2d 942 (1982); Gale v. Dept. of Rev., 293 Or. 221, 646 P.2d 27 (1982); Portland Police Assn. v. Civil Service Board, 292 Or. 433, 639 P.2d 619 (1982). Like most states, Oregon throughout its history has had a constitutional ban against placing anyone twice in jeopardy for the same offense. Or. Const. art. I, § 12. 1 That guarantee has in the past been given independent interpretation with results that might not correspond to those in other states or in federal law. See State v. Brown, 262 Or. 442, 497 P.2d 1191 (1972), holding that article I, section 12 requires consolidation of charges known to the prosecutor. State v. Rathbun, supra, was decided under article I, section 12 in September 1979, well before the trial or the appeal in this case.

In its initial decision reversing this conviction, the Court of Appeals cited no statutory or constitutional source at all for that result. It quoted from two opinions of the United States Supreme Court to summarize what it called a "general rule" about the permissibility of reprosecution after mistrials. The court then cited its own decision in State v. Rathbun, 37 Or.App. 259, 586 P.2d 1136 (1978), noting only that it had been reversed "on other grounds" by this court. It might not be apparent to a reader that this court in fact had reversed the Court of Appeals on the very point at issue under Oregon's double jeopardy clause.

We denied the state's petition for review of the decision of the Court of Appeals. That, of course, implied nothing as to its correctness. 1000 Friends of Oregon v. Board of County Commissioners, 284 Or. 41, 44, 584 P.2d 1371 (1978). In response to the state's petition to the United States Supreme Court for a writ of certiorari, defendant pointed out that, given the appellate court's cryptic silence on the point, its decision might rest on the Oregon Constitution's double jeopardy clause that was applied by this court in Rathbun. The Supreme Court nevertheless granted the petition, carrying forward its current campaign not to let state or lower federal courts draw more protective constraints from the federal constitution's guarantees in matters of criminal law than the Court itself is prepared to recognize. 2 The possibility that the result might rest on an independent state ground was pursued by the justices both on oral argument and in the opinions. The majority took note of the studied citation by the Court of Appeals of its own opinion in Rathbun, which purported to apply federal law, despite this court's reversal of that decision under Oregon law. 3 Four justices, however, thought the role of state law in this case more complex, as expressed by Justice Stevens:

"Although I am willing to accept the Court's reading of the Oregon Court of Appeals' opinion as having been based on federal law, I find the question somewhat more difficult than does the Court because the Oregon Supreme Court declined to review the case without explaining its reasons. Since the Oregon Supreme Court seems to have interpreted the state constitutional protection against double jeopardy to be broader than the federal provision, see State v. Rathbun, 287 Or 421, 600 P2d 392 (1979), it is entirely possible that that court's refusal to review the Court of Appeals' decision was predicated on its view that the decision was sound as a matter of state law regardless of whether it was compelled by federal precedents."

456 U.S. at 681 n. 1, 102 S.Ct. at 2092 n. 1 (Stevens, J., concurring, joined by Brennan, Marshall, and Blackmun, JJ.).

This quotation makes clear that a practice of deciding federal claims without attention to possibly decisive state issues can create an untenable position for this state's system of discretionary Supreme Court review. It can also waste a good deal of time and effort of several courts and counsel and needlessly spur pronouncements by the United States Supreme Court on constitutional issues of national importance in a case to whose decision these may be irrelevant. In effect, when this court might reach the same result under the Oregon law that a lower court reaches by citing federal precedents, we would have to allow review at the instance of a losing party objecting only to the federal holding, while the successful party who might prefer a decision on state grounds has no reason to petition us for review. 4 Surely a practice that requires a winning party to seek review solely in order to shift a favorable judgment from federal to state grounds is wholly unreasonable, apart from its logical flaws.

In the present case, we in fact do not reach the same result as the Court of Appeals did in its initial decision. Had that decision given its attention first to the state law precedent of Rathbun and reversed defendant's conviction under article I, section 12, we might have allowed review in order to compare this case with Rathbun. If so, we might not only have decided the state claim against the defendant, as we do today, but also his federal claim, thereby relieving the Supreme Court of concern about a reading of the fifth amendment more expansive than its own. As it is, we reach the issue of Oregon law two and one-half years and hundreds of pages of briefs after it might have been decided in the Oregon courts. 5

The state contends that we should not reach an Oregon issue at all because it was not adequately argued below. The attorney general concedes that Oregon's article I, section 12, was "dutifully cited" to the circuit court. He argues, however, that it was not urged as a basis "distinct" or "separate" from the federal double jeopardy provision, because defendant cited in support of his claim only cases that were themselves decided on federal grounds. He cites this court's prior admonitions that the specific bases of constitutional claims should be not only quoted but analyzed. 6

We do not lack sympathy for the state's position, as those citations show. Legal claims raised but not substantially briefed are burdensome to meet and difficult to decide correctly. As the Chief Justice suggested during the oral argument, it might clarify matters if issues of state law were briefed first and federal issues only thereafter. On issues new to this state's law, we may prefer principled arguments to mere citations from other jurisdictions, arguments such as both the state itself and other parties have provided in this and in other cases. Experience suggests, however, that such arguments are more common when a case has no direct analogues in decisions of the United States Supreme Court or other high courts. See, e.g., McCall v. Legislative Assembly, 291 Or. 663, 634 P.2d 223 (1981) (reapportionment); LaGrande/Astoria v. Public Employes Retirement Board, 284 Or. 173, 586 P.2d 765 (1978) (municipal home rule). The reality is that time for original analysis is scarce, particularly in the ordinary criminal case; and particularly at the trial level, lawyers and courts often depend on the shorthand of case citations in preference to scrutinizing statutes and constitutional...

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