Answering brief on the merits of respondent Gary D. Haugen

7/29/2019 Answering brief on the merits of respondent Gary D. Haugen

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IN THE SUPREME COURT OF THE STATE OF OREGON

GARY D. HAUGEN,Marion County Circuit Court

Plaintiff-Respondent, No. 12C16560

v.Court of Appeals No. A152412

JOHN KITZHABER, Governorof the State of Oregon,

Supreme Court No. S060761Defendant-Appellant.

ANSWERING BRIEF ON THE MERITS OFRESPONDENT GARY D. HAUGEN

Certified appeal from the Court of Appeals, upon appeal from thejudgment of the Circuit Court For Marion County

Honorable TIMOTHY P. ALEXANDER, Senior Judge

HARRISON LATTO (OSB #81289) ELLEN F. ROSENBLUM

Attorney at Law (OSB #753239)1631 NE Broadway, No. 533 Attorney GeneralPortland, Oregon 97232 ANNA M. JOYCE (OSB #013112)Telephone: (503) 223-0783 Solicitor GeneralE-mail: [email protected] JAKE J. HOGUE (OSB #123459)

Assistant Attorney GeneralAttorney for Respondent 1162 Court Street NE

Salem, Oregon 97301-4096Telephone: (503) 378-4402E-mail: [email protected]

Attorneys for Appellant

Brief filed: February 2012

(Counsel continued following page)

February 19, 2013 11:20 PM


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BRUCE L. CAMPBELL (OSB #925377) KEVIN DIAZ (OSB #970480)ELISA J. DOZONO (OSB #063150) Legal Director

ALEXANDER M. NAITO (OSB #124046) ACLU Foundation of OregonMiller Nash LLP P.O. Box 405853400 U.S. Bancorp Tower Portland, Oregon 97240111 S.W. Fifth Avenue Telephone: (503) 227-6928Portland, Oregon 97204 E-mail: [email protected]: (503) 224-5858E-mail: [email protected]

Attorneys forAmicus Curiae ACLU of Oregon, Inc.

JEFFREY ELLIS (OSB #102990)Attorney at Law621 S.W. Morrison Street, Suite 1025Portland, Oregon 97205Telephone: (503) 218-7076E-mail: [email protected]

Attorney forAmicus Curiae Oregon Capital Resource Center

ERIN McKEE (OSB #114565)

Deputy Executive DirectorOregon Justice Resource CenterP.O. Box 40558Portland, Oregon 97240Telephone: (503) 768-7321E-mail: [email protected]

Attorney forAmicus Curiae Oregon Justice Resource Center


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TABLE OF CONTENTS

Statement of the Case:

Questions Presented and Proposed Rules of Law. . . . . . . . . . . . . . . . . . . . . 1

Summary of Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

I. Procedural history. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

II. An act of executive clemency can be accepted, or rejected by theintended recipient.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

A. This Courts clemency decisions, likeUnited States v. Wilson,

adopt the acceptance theory without respect to the unconditionalor conditional nature, or pre- or post-conviction timing of the actof clemency involved... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

B. Defendant has not demonstrated sufficient cause for this Courtto overrule its previous clemency precedents.. . . . . . . . . . . . . . . . . . 34

1. The reprieve subjects plaintiff to cruel and unusualpunishment under the Eighth Amendment and theFourteenth Amendments Due Process Clause... . . . . . . . . . . 38

2. The reprieve deprives plaintiff of his liberty interest,protected by the Due Process Clause of the FourteenthAmendment, in his individual dignity and autonomy... . . . . . 41

III. The Governors reprieve is unlawful because it exceeds theauthority conferred upon him by Article V, section 14... . . . . . . . . . . . . . . 43

A. Constitutional context.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

B. Statutory context.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

C. Case law... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

D. Historical practice.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

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IV. Resolution of the issues presented is within this courts authority... . . . . . 62

V. Conclusion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

TABLE OF AUTHORITIES

Cases

Anderson v. Alexander, 191 Or 409, 229 P2d 633 (1951). . . . . . . . . . . . . . . . . . . 44

Baker v. Carr, 369 US 186, 82 S Ct 691, 7 L Ed 2d 663 (1962). . . . . . . . . . . . . . 31

Biddle v. Perovich, 274 US 480, 47 S Ct 664,71 L Ed 1161 (1927).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 27-28, 35-37

Bollinger v. Board of Parole, 329 Or 505, 992 P2d 445 (1999). . . . . . . . . . . . . . 29

Burdick v. United States, 236 US 150, 35 S Ct 267,59 L Ed 476 (1922).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 25-28

Carpenter v. Lord, 88 Or 128, 171 P 577 (1918). . . . . . . . . . . . . . 13-14, 17-20, 27

Commonwealth v. Lockwood, 109 Mass 323 (1887). . . . . . . . . . . . . . . . . . . . . . . 26

Eacret v. Holmes, 215 Or 121, 333 P2d 741 (1958).. . . . . . . . . . . . . . . . . . . . 63-67

Evans v. Bennett, 440 US 1301 (1979).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Ex parte Houghton, 49 Or 232, 89 P 801 (1907). . . . . . . . . . . . . . 12-13, 19, 29-30

Ex parte Hyde, 192 So 195 (Fla 1939). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

Ex parte Phillip Grossman, 267 US 87, 45 S Ct 332,69 L Ed 527 (1925).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Ex parte William Wells, 59 US 307, 15 L Ed 421 (1856).. . . . . . . . . . . . . . . . . . . 26

Farmer v. Brennan, 511 US 825 (1994).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Farmers Insurance Company of Oregon v. Mowry, 350 Or 686,261 P3d 1 (2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Fehl v. Martin, 155 Or 455, 64 P2d 631 (1937). . . . . . . . . . . . . . . . . . . . . . . . . . . 44

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Fredericks v. Gladden, 209 Or 683, 308 P2d 613 (1957). . . . . . . . . . . . . . . . . . . 18

Fredericks v. Gladden, 211 Or 312, 315 P2d 1010 (1957). . . . . . . . . . . . . . . 16-18

Furman v. Georgia, 408 US 238 (1972).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Gregg v. Georgia, 428 US 153 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

In re Medley, 134 US 160 (1890). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

In re Petition of Dortmitzer, 119 Or 336, 249 P 639 (1926). . . . . . . . 15-16, 19, 29

Graham v. Florida, 130 S Ct 2011 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Halparin v. Halperin, 352 Or 482, 287 P3d 1069 (2012). . . . . . . . . . . . . . . . . . . 18

Johnson v. Bredesen, 130 S Ct 541 (2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Lackey v. Texas, 514 US 1045 (1995).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Lenhard ex rel. Bishop v. Wolff, 603 F2d 91 (9 Cir 1979). . . . . . . . . . . . . . . . . . 41th

Lenhard v. Wolff, 443 US 1306 (1979).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

MacPherson v. Department of Administrative Services,340 Or 117, 130 P3d 308 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47-48

Marbury v. Madison, 5 US 137 (1803)... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

McCarthy v. Hoan, 221 Wis 344, 266 NW 916 (1936). . . . . . . . . . . . . . . . . . . . . 63

Miller v. Alabama, 132 S Ct 2455 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S Ct 2566 (2012).. . . . . . . . . . . . . . . . 60

Outdoor Media Dimensions Incorporated v. State of Oregon,331 Or 634, 20 P3d 180 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Palka v. Walker, 198 A 265 (Conn 1938).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

People v. Anderson, 493 P2d 880 (Cal 1972).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Priest v. Pearce, 314 Or 411, 840 P2d 65 (1992).. . . . . . . . . . . . . . . . . . . . . . . . . 45

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Rico Villalobos v. Giusto, 339 Or 197, 118 P3d 246 (2005). . . . . . . . . . . . . . . . . 45

Roper v. Simmons, 543 US 551 (2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

State v. Ciancanelli, 339 Or 282, 121 P3d 613 (2005).. . . . . . . . . . . . . . . . . . . . . 35

State ex Rel Oregonian Pub. Co. v. Deiz,289 Or 277, 613 P2d 23 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

State ex rel Ricco v. Biggs, 198 Or 413, 255 P2d 1055 (1953). . . . . . . . . . . . . . . 65

State v. Counts, 311 Or 616, 816 P2d 1157 (1991). . . . . . . . . . . . . . . . . . . . . . . . 65

State v. Finch, 54 Or 482, 103 P 505 (1909). . . . . . . . . . . . . . . . . . . . . . . 46, 52-54

State v. Garrand, 5 Or 156 (1874). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

State v. Garrand, 5 Or 216 (1874). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

State v. Haugen, 349 Or 174, 243 P3d 31 (2010).. . . . . . . . . . . . . . . . . . . . . . . . . . 6

State v. Haugen, 351 Or 325, 266 P3d 68 (2011).. . . . . . . . . . . . . . . . . . . . . . . . 6-7

State v. Hawk, 47 W Va 434, 34 SE 918 (1900).. . . . . . . . . . . . . . . . . . . . . . . . . . 15

State v. Hirsch, 338 Or 622, 114 P3d 1104 (2005).. . . . . . . . . . . . . . . . . . . . . . . . 46

Strunk v. PERB, 338 Or 145, 108 P3d 1058 (2005). . . . . . . . . . . . . . . . . . . . . . . . 64

Suffolk County District Attorney v. Watson,411 NE 2d 1274 (Mass 1980).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

United States v. Wilson, 32 US 150, 8 L Ed 640 (1833).. . . . . . . . . . . . . . . . passim

Valle v. Florida, 132 S Ct 1 (2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Statutes and Constitutional Provisions

Due Process Clause (US Const, Amend XIV). . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

The Codes and General Laws of Oregon, Crim Proc, Chap XXII, 1422, 1440, 1441 (Hill 1887).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

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General Laws of Oregon, Crim Code, Ch XXXIII, 335, 336(Deady 1845-1864).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Or Const, Art I, 22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46-48

Or Const,Art I, 15.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52Or Const, Art I, 40. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

Or Const, Art V, 10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Or Const, Art V, 14. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Or Const, Art VII (amended), 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64, 66

Or Const, Art VII (original), 9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

Or Laws 1955, ch 505, 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Or Laws 1965, ch 616, 91. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Or Laws 1995, ch 805, 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

ORS 127.800 to 127.897 (Death With Dignity Act).. . . . . . . . . . . . . . . . . . . . . 41

ORS 137.463 to 137.482.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

ORS 137.463. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

ORS 137.463(5).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

ORS 137.473. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

ORS 137.478. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

ORS 144.660. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

ORS 421.120(1953).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

ORS 421.120(1)(1955). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

US Const, Art II, 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30-31

US Const, Amend VIII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

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Other Authorities

AMJUR, Pardons. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Ballentines Law Dictionary (3d ed 1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 53Biennial Message of Gov. L. F. Grover (State Printing Office 1876). . . . . . . . . . 57

Biennial Message of Gov. W. W. Thayer to the Legislative Assembly(State Printing Office)... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

William Blackstone, Commentaries on the Laws of England. . . . . . . . . . . . . 24, 55

John H. Blume,Killing the Willing: Volunteers, Suicide and Competency,103 MICH.L.REV. 939 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Richard J. Bonnie, The Dignity of the Condemned,74 VA.L.REV. 1363 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

G. Sidney Buchanan, The Nature of a Pardon Under the United StatesConstitution, 39 OHIO STATE LJ 36 (1978).. . . . . . . . . . . . . . . . . . . . . . . . 28

Corpus Juris Secundum,Pardons and Parole, 33.. . . . . . . . . . . . . . . . . . . . . . . 54

Oregon Executive Department Records 1859-1874.. . . . . . . . . . . . . . . . . . . . . . . 57

W. H. Humbert, The Pardoning Power of the President(American Council on Public Affairs 1941).. . . . . . . . . . . . . . . . . . . . . . . . 54

David Jenkins, Eight Centuries of Reports.. . . . . . . . . . . . . . . . . . . . . . . . . . . 31-34

The Federalist, No. 74 (Hamilton). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

William R. Long,A Tortured History: The Story of Capital Punishmentin Oregon (Or Crim Defense Lawyers Assn 2001).. . . . . . . . . . . . . . . 57-58

Pardons, Remissions and Commutation of Sentence

(Multiple Volumes, Oregon State Printing Office). . . . . . . . . . . . . . . . 59-60

Plato,Apology. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

William Shakespeare, The Merchant of Venice. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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RESPONDENTS ANSWERING BRIEF

STATEMENT OF THE CASE

Plaintiff accepts defendants statement of the case, except that he provides a

more comprehensive summary of facts, and different questions presented and

proposed rules of law.1

First Question Presented

Does a governors act of clemency granted under Article V, section 14 of

the Oregon Constitution have to be accepted by the intended recipient to be

effective?

Proposed Rule of Law

Yes. This Courts case law already so holds, and defendant has not made a

showing sufficient for this Court to overrule its existing, long-standing precedents.

Second Question Presented

Is Governor Kitzhabers ostensible reprieve granted to plaintiff within his

power under Article V, section 14?

Proposed Rule of Law

No. A reprieve as used in that section has a fairly precise meaning, and

placed in context with other constitutional provisions, was not intended to

This Courts rules are somewhat unclear regarding the proper format for briefs1

in this Court upon an appeal certified from the Court of Appeals. For example,appellants brief contains no assignment of error. Plaintiff follows defendantslead, and this brief contains only an argument, rather than a response to a non-existent assignment of error, and includes within that heading a right for thewrong reason claim that ordinarily would follow a cross-assignment of error.


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authorize the governor to use a reprieve to effect a suspension of certain laws

about which he has misgivings.

SUMMARY OF ARGUMENT

The quality of mercy is not strained, explains Portia to Shylock inThe

Merchant of Venice (Act IV, sc 1), but droppeth as the gentle rain from heaven.

Although Portia is answering Shylock when he asks why he should show mercy to

Antonio instead of demanding strict compliance with the terms of his contract, her

description is apt here as well. Any grant of executive clemency is an act ofmercy, but under Governor Kitzhabers conception of mercy, it can be strained

by forcing it upon someone who does not want it. But an act of mercy, or of

grace or favor, as this Court has described executive clemency, is in its essence

something desired by the recipient; and so, as Portia continues, it is twice blessed;

it blesseth him that gives and him that takes. Portia later states the obvious,

which is that we do pray for mercy. Something undesired is not mercy at all,2

but something else.

Mercy cannot be forced upon someone any more than a gift can be, and

what one person considers to be a benefit, another might consider to be an injury.

A purported act of benevolence that can be forced upon someone who does not

want it is a contradiction not only in terms, but of concepts. Here, Mr. Haugen

considers Governor Kitzhabers action, as well-intentioned as it might be, to be

In the play, Antonio has not been sentenced to death, but has only borrowed2

money from Shylock under unusual terms, and the act of mercy Portia urges uponShylock is something that Antonio dearly wants.


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profoundly dehumanizing and cruel. It makes him an unwilling pawn in the

Governors desire to allow Oregonians to engage in a debate over the death

penalty, even though nothing has impeded them from engaging in that debate ever

since they overwhelmingly voted to establish the death penalty nearly 30 years

ago. Because Governor Kitzhaber obviously cannot determine whether his

successor as Governor will continue the moratorium he has imposed, Mr. Haugen

could be put to death by lethal injection as soon as Governor Kitzhaber leaves

office. That might occur only after a wait of about seven years, if GovernorKitzhaber seeks, and is re-elected to a second four-year term, or could happen at

any time, if Governor Kitzhaber were to leave office unexpectedly, because of his

death, incapacity, resignation, recall, or removal from office. The ostensible

reprieve therefore makes plaintiff live for up to seven years under an awful pall of

uncertainty regarding whether, and when he will be put to death.

That is not something Mr. Haugen wants, and not something he sought. By

rejecting the reprieve, plaintiff is not claiming any power to force the state to

execute him, as defendant puts it. (App Br 5). Similarly, it is sophistry to say, as3

Governor Kitzhaber did in declaring his moratorium, that [t]he only factor that

determines whether someone sentenced to death in Oregon is actually executed is

that they [sic] volunteer. (Supp ER-10). Rather, plaintiffs choice was an entirely

a passive one, in choosing not to spend ten or fifteen years on death row pursuing

Defendantsamici put it even more tendentiously, saying that plaintiff claims3

the power to force the State to kill him. (Amicus Br 11).


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legal challenges to his conviction or sentence, with uncertain chances of success,

and when success in any case merely results often only in a new penalty-phase

trial. If plaintiff is executed, it would not be by plaintiffs will, but rather

something demanded by the judgment of a jury and a court, acting according to

controlling statutes and as twice affirmed by this Court.

This conception of executive clemency is not only plaintiffs, but this

Courts as well. In multiple decisions handed down over a period of several

decades, this Court has agreed that it is in the nature of executive clemency underthe Oregon Constitution that it is something that is ineffective unless accepted by

the intended recipient. Although Governor Kitzhaber asserts that case law

establishes that acceptance is not required (App Br 2), the single decision he cites

supporting that assertion is a 800-year old, English decision that was explicitly

disavowed in the decision of the United States Supreme Court that this Court has

adopted in construing the state analogue to the federal clemency power. This

Courts four decisions addressing this issue, to which Governor Kitzhabers brief

devotes only cursory treatment, all either hold, or refer approvingly to the idea that

an act of clemency is ineffective unless accepted by the intended recipient.

Defendant has made an inadequate case for the overruling of those

precedents, especially when this particular reprieve would require plaintiff simply

to stand by for an uncertain period of time lasting up to seven years, after which

he will find out whether or not he will be put to death. If the acceptance theory


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of clemency applies only to conditional grants, that is a condition that inheres in

the reprieve because of its unusual nature, and entitles him to reject it.

Of course, Governor Kitzhabers ostensible reprieve is not actually an act

of mercy at all. According to his own pronouncement, he granted the reprieve

because he is morally opposed to the death penalty. Accordingly, his reprieve if

for his own purposes, and not for plaintiffs benefit. But if substance, rather than

form is to control, the reprieve is ineffective to halt plaintiffs execution for a

second, independent reason, that defendant has chosen to ignore in his brief.Governor Kitzhabers act merely carries the label of reprieve; in actuality it

is something else entirely. A reprieve had, at the time the Oregon Constitution

was adopted and long before that, a fairly precise meaning. Its function is never to

annul a sentence, but only to delay its execution, so that certain circumstances

existing at the time of a scheduled execution, that would make its immediate

carrying out inhumane or unjust, can pass, so that the execution can then be carried

out. Because traditionally a death sentence was required by law be carried out

only two days after its imposition, reprieves were often granted in order to allow a

prisoner to take certain actions, such as an appeal or application for a pardon, that

would be rendered moot unless the carrying out of his sentence was reprieved. In

order to effectuate that function of only temporarily delaying a sentence, a reprieve

by its nature lasts for a specified, definite period of time. Indeed, Governor

Kitzhabers ostensible reprieve is completely unprecedented in


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this aspect, because of the 120 other reprieves Oregon governors have issued since

Statehood, every one of them has carried an expiration date.

Historical practice, case law, and constitutional and statutory context of the

constitutional provision involved, strongly support this conception of a reprieve.

Governor Kitzhabers ostensible reprieve merely carries that label. In actuality it

is an attempt to suspend or nullify the operation of certain laws about which

Governor Kitzhaber has moral and other qualms, masquerading as a reprieve.

ARGUMENT

This brief first provides a more complete summary of the facts, which are

undisputed, than is contained in the defendants brief. It then discusses why, for

either of the two reasons just described, Governor Kitzhabers ostensible reprieve

is legally ineffective to halt plaintiffs execution.

I. Procedural history.

Plaintiff Gary D. Haugen was convicted in 2007 of committing aggravated

murder by killing a fellow inmate at the Oregon State Penitentiary. Upon

automatic, direct appeal this Court affirmed his conviction and sentence. State v.

Haugen, 349 Or 174, 243 P3d 31 (2010). In 2003, when he committed the murder

for which he was sentenced to death, Mr. Haugen had already been an inmate at

the Oregon State Penitentiary for more than 20 years, serving a life sentence for

another murder conviction, in 1981. Haugen, 349 Or at 176.

The proceedings conducted after that are described inState v. Haugen, 351

Or 325, 266 P3d 68 (2011). After his conviction was affirmed, Mr. Haugen


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announced publically that he would decline to pursue collateral challenges to his

conviction or sentence. The trial court conducted a death-warrant hearing,

pursuant to ORS 137.463. This Court issued an alternative writ of mandamus

directing the trial court to conduct additional proceedings concerning plaintiffs

mental competence. The trial court did so, and this Court dismissed the alternative

writ. The trial court, after determining that Mr. Haugen was competent, issued a

death warrant on November 18, 2011, directing that Mr. Haugen be executed on

December 6, 2011. This Court then considered, but rejected a second challenge tothe procedures used by the trial court for its inquiry into the subject of plaintiffs

competence, holding that the trial court had complied both with the alternative writ

of mandamus, and the applicable statutes. Haugen, 351 Or at 335-44.

On November 22, 2011, the day after this Court issued its opinion,

Governor Kitzhaber granted to Mr. Haugen what he labeled a temporary

reprieve. By its terms, the reprieve will last as long as the duration of Governor

Kitzhabers service as Governor. The reprieve also states that the Governor

granted it for the reason that Oregons application of the death penalty is not

fairly and consistently applied, and I do not believe that state-sponsored

executions bring justice. (Supp ER-9).4

There are several defects in defendants excerpt of record. It includes a copy of4

the initial, rather than amended (and operational) complaint, and omits two out ofthree documents that were attached to both versions; it also omits his own answer,and the judgment. This brief provides a complete, supplemental excerpt of record.


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At the same time he granted the reprieve to Mr. Haugen, Governor

Kitzhaber declared a general moratorium upon executions while he serves as

Governor. In his statement explaining the moratorium, Governor Kitzhaber,5

noting that during his prior service as Governor he had permitted two condemned

prisoners to be executed, stated that he simply cannot participate once again in

something I believe to be morally wrong. Governor Kitzhaber referred to the

pursuit of legal challenges to their sentences by death-row inmates as a broken

system, stating that the other 36 death-row inmates all have many years andappeals left before there is even a remote possibility of carrying out their death

sentence, so that the only factor that determines whether someone sentenced to

death in Oregon is actually executed is that they volunteer. The Governor also

stated that he could have commuted Mr. Haugens sentence and indeed the

sentences of all those on death row to life in prison without the possibility of

parole, but that he did not do so because the policy of this state on capital

punishment is not mine alone to decide. It is a matter for all Oregonians to decide.

He stated that it was his hope and intention that his action would bring about

a long overdue reevaluation by Oregon citizens of our current policy and our

system of capital punishment, and he called on the legislature to bring potential

reforms before the 2013 legislative session and encourage all Oregonians to

A copy of the Governors statement was attached to the amended complaint,5

but is omitted from defendants excerpt of record. It is set forth at Supp ER-10.The statement is also available on the Governors official website, at:http://www.oregon.gov/gov/media_room/pages/press_releasesp2011/press_112211.aspx.


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engage in the long overdue debate that this important issue deserves.6

On March 12, 2012, plaintiff delivered a letter to the Governor, in which he

stated that he refused the reprieve the Governor had offered to him, and also filed a

motion in the criminal action asking that either another death warrant be issued, or

a death-warrant hearing be conducted. Acting on behalf the State of Oregon, the

plaintiff in the criminal case, the District Attorney For Marion County filed a

response in which he agreed with Mr. Haugen that his rejection of the reprieve

made it ineffective to halt his execution. Governor Kitzhaber was permitted tointervene as a party in the criminal case, and opposed the motion. Mr. Haugen

then filed this action for a declaratory judgment. Proceedings in the criminal case

were stayed pending the outcome of this case, and Governor Kitzhaber was

permitted to withdraw as a party in the criminal case. (Supp ER-32). The parties

have agreed that the outcome of this action will determine the further course of

events in the criminal case.

In his amended complaint for a declaratory judgment, plaintiff asserted that

Governor Kitzhabers ostensible reprieve was ineffective to halt his execution for

either of two reasons: because a reprieve to be effective has to be accepted by the

On December 5, 2011, a lawyer purporting to act on plaintiffs behalf filed a6

copy of the reprieve in plaintiffs criminal case, without any accompanyingcomment or pleading. At the same time as his motion for re-issuance of a deathwarrant, plaintiff also filed a motion to quash the filing of the reprieve, on thebasis that the filing was without his knowledge or consent, and without serviceupon him as required by statute. Neither the District Attorney nor the Governoropposed that motion, and on April 25, 2012, the trial court entered an orderdeclaring that the filing of the reprieve was quashed and annulled, and null andvoid and with no legal effect. (Supp ER-31).


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intended recipient; and because the reprieve, although it carried that label, was not

actually a reprieve, because it did not last for a definite period of time, and because

it was issued not for the purpose of allowing certain circumstances to pass, but as

an attempted nullification of certain laws. (Supp ER-5 - 7).

The trial court issued an opinion on August 3, 2012, holding that under

Oregon law a reprieve was ineffective unless accepted by the recipient. (App Br,

ER-3). The trial court entered a judgment declaring that the reprieve was7

ineffective to halt plaintiffs execution, for the reason that, to be effective, areprieve must be accepted by the recipient, and plaintiff has rejected the

reprieve. The judgment further stated that it would control further proceedings

in the related criminal action. (Supp ER-5). The judgment was stayed pending

this appeal.

II. An act of executive clemency can be accepted, or rejected by the

intended recipient.

The first question presented is whether the trial court was correct in

concluding that the Governor lacks power under the Oregon Constitution to force

an unconditional grant of clemency upon an recipient who does not accept it, and

that accordingly, Governor Kitzhabers reprieve is ineffective to halt Mr. Haugens

execution. On the issue of whether an intended recipient of an act of clemency is

entitled to reject, or accept it, there are two competing theories. The acceptance

Although the trial court stated that it need not reach the remaining7

allegations in the complaint, it also held that there was no requirement that areprieve specify a particular date that it expires. (Supp ER-3).


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theory was adopted by the United States Supreme Court, in an opinion authored by

Chief Justice Marshall, inUnited States v. Wilson, 32 US 150,, 8 L Ed 640 (1833),

and followed nearly ninety years later inBurdick v. United States, 236 US 150, 35

S Ct 267, 59 L Ed 476 (1922). A few years after that, however, the United States

Supreme Court did an about-face and adopted the public welfare theory of

clemency, in an opinion authored by Justice Holmes. Biddle v. Perovich, 274 US

480, 47 S Ct 664, 71 L Ed 1161 (1927).

This Court does not come freshly to this battle of the legal titans, however.In four decisions, spanning five decades, it has adopted or referred approvingly to

the acceptance theory. Two of the decisions quote approvingly from Chief

Justice Marshalls opinion inWilson. Moreover, the last of the four decisions

and one of the two that quotes approvingly fromWilson cameafterthe United

States Supreme Courts did its about-face and adopted the public welfare theory,

inBiddle. Defendant thus bears the burden of showing why this Court should now

overrule its prior decisions and adopt a new theory of executive clemency.

Accordingly, this brief first provides a comprehensive discussion of this

Courts four decisions regarding acceptance of clemency. Because the parties

disagree about the meaning and analysis of the United States Supreme Courts

decision inWilson, the brief also provides an especially detailed and

comprehensive discussion of that leading case. It then argues that, for several

reasons, this case would be an especially inappropriate vehicle for overruling this


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Courts prior adoption of the acceptance theory.

A. This Courts clemency decisions, like United States v. Wilson,

adopt the acceptance theory without respect to the unconditionalor conditional nature, or pre- or post-conviction timing of the actof clemency involved.

The Governors clemency power granted by Article V, section 14 of the

Oregon Constitution, unchanged since the constitutions adoption 1857, is as

follows:

[The Governor] shall have power to grant reprieves, commutations,

and pardons, after conviction, for all offences [sic] except treason,subject to such regulations as may be provided by law. Uponconviction for treason he shall have power to suspend the executionof the sentence until the case shall be reported to the LegislativeAssembly, at its next meeting, when the Legislative Assembly shalleither grant a pardon, commute the sentence, direct the execution ofthe sentence, or grant a farther [sic] reprieve.

He shall have power to remit fines, and forfeitures, under suchregulations as may be prescribed by law; and shall report to theLegislative Assembly at its next meeting each case of reprieve,

commutation, or pardon granted, and the reasons for granting thesame; and also the names of all persons in whose favor remission offines, and forfeitures shall have been made, and the several amountsremitted[.]

Or Const, Art V 14.

InEx parte Houghton, 49 Or 232, 89 P 801 (1907), the Governor commuted

an inmates sentence to time served, conditioned upon the inmates obedience to

the laws after his release. A few months after his release the inmate was arrested

upon an order from the Governor, and returned to prison, upon the Governors

determination that the inmate had violated city ordinances. The inmate argued

that: (1) because the Governors power under the Constitution did not extend to


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granting conditional commutations or pardons, that aspect of the commutation was

void; and that (2) he could only be returned to prison through a judicial

proceeding. Regarding the first claim, this Court stated:

The commutation wasan act of grace or favor, and [the inmate] wasnot obliged to accept it unless he so desired. He might have refusedit, and served out his sentence as originally imposed, but chose toaccept the conditional commutation, and in doing so stipulated thatfor a violation of the conditions he might be summarily arrested byorder of the Governor and remanded to the penitentiary to serve theremainder of his original sentence. There is nothing unlawful orillegal in such an agreement, and no reason why it should not be

enforced in the manner stipulated.Houghton, 49 Or at 234 (emphasis added). This passage may be construed in two

different ways. On the one hand its meaning could be limited to the idea that a

conditional commutation may be accepted or rejected by the person to whom it is

offered, but only because he may prefer to serve his sentence rather than obey the

conditions that come attached to the offer of clemency. On the other hand, the

court also stated that a commutation was an act of grace or favor, and that the

person to whom it was offered was not obliged to accept it unless he so desired.

That sentence is not qualified in any way or limited to conditional, as opposed to

unconditional acts of clemency.

This Court later reiterated what might be called the acceptance conception

of executive clemency, inCarpenter v. Lord, 88 Or 128, 171 P 577 (1918). Again,

the court did not distinguish between conditional, and unconditional pardons,

stating that the Governor may pardon an offender by virtue of his constitutional

power in that behalf, but even that is not effective unless it is accepted by the


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prisoner to whom the pardon is offered. Carpenter, 88 Or at 137 (emphasis

added). This Court then quoted from an early opinion of the United States

Supreme Court authored by Chief Justice Marshall, as follows:

A pardon is a deed, to the validity of which, delivery isessential, and delivery is not complete, without acceptance. It maythen be rejected by the person to whom it is tendered; and if it berejected, we have discovered no power in a court to force it on him.

Carpenter, 88 Or at 137, quotingUnited States v. Wilson, 32 US 150, 161, 8 L Ed

640 (1833). Again here, the courts statements are unqualified, and do not refer to

any conditional or unconditional nature of the pardon. Thus, a pardon is only

offered or tendered by the Governor to a prisoner, and cannot be forced on

him.

Of course, in the wide majority of cases, the issue of whether acceptance is

required will never arise, for the reason that acts of clemency are usually sought by

convicted defendants, and issued by the executive authority only in response to an

application. Here, plaintiff did not pursue the reprieve offered by the Governor

the Governor acted, apparently, in response to the petition of third parties and

under Carpenter v. Lord, a pardon is only effective upon acceptance. Under

Houghton andCarpenter, an act of clemency by the Governor is effective only

upon acceptance; this one has been rejected, rather than accepted; and therefore, it

is ineffective to halt Mr. Haugens execution.

There is no basis for distinguishing pardons, addressed inCarpenter v.

Lord, and commutations, addressed inHoughton, from other acts of clemency,

such as reprieves or remissions of fines. In any case, this Court has also adopted


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the acceptance theory in the case of a reprieve. InIn re Petition of Dortmitzer,

119 Or 336, 249 P 639 (1926), a defendant who had been sentenced to six months

in jail was granted a six-month reprieve by the Governor and released, after he had

served a portion of his sentence. The reprieve was granted on the condition that

the defendant obey the laws. About a month before the reprieve was to expire, the

Governor revoked it on the basis that the defendant had violated that condition,

and the defendant was returned to custody. He petitioned for a writ of habeas

corpus, on the basis that the clemency he had received, in actuality was anunconditional pardon. Dormitzer, 119 Or at 338. In rejecting that claim, this

Court distinguished between reprieves and pardons, stating that a reprieve is the

withdrawing of a sentencefor an interval of time whereby the execution is

suspended, Id. at 339 (emphasis added), quoting29 Cyc 1561. This Court held

that, although in its restricted or technical application a reprieve applied only to

a death sentence, id. a reprieve could also be granted with respect to a sentence

other than death. As support for that, this Court cited a decision of the West

Virginia Supreme Court, which defined the power to issue a reprieve as the power

to suspend the sentenceuntil the matter can be inquired into and determined.

Id. (emphasis added), quotingState v. Hawk, 47 W Va 434, 435, 34 SE 918

(1900).

This Court inDormitzerfound it unnecessary to decide whether a reprieve

in a non-capital case was within the Governors power, because if it was not, then

his act was a nullity, so that the released inmate was lawfully reincarcerated, and


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if it was within the Governors power to grant the reprieve on condition, he also

had the right to revoke it. 119 Or at 340. For present purposes, the important part

of this Courts opinion was when it responded to an argument that the Governors

suspension of the jail sentence of the incarcerated person, Edmunson, operated to

deprive him of the right to appeal. This Court answered, Edmunson had the right

to accept or reject the reprieve, and therefore was not prevented from appealing.

Id.

Finally, inFredericks v. Gladden, 211 Or 312, 315 P2d 1010 (1957), thisCourt again adoptedWilsons acceptance theory of clemency. A significant aspect

ofFredericks is that the case was decided after the United States Supreme Court,

in 1927, reversed course and, in place of the acceptance theory, adopted a public

welfare theory of executive clemency.

InFredericks, a prisoner was released by mistake, when prison officials

used an incorrect method for calculating the reductions to his sentence the prisoner

had earned through good behavior while incarcerated. When the mistake was

discovered, the prisoner was arrested and returned to prison. He sought his release

through a writ of habeas corpus. At the time, the Governor played a role in

awarding good-time credits to a prisoner. The controlling statute provided that,

for appropriate behavior, a prisoner shall be entitled, upon the order of the

Governor, to a deduction from the term of his sentence, to be computed as follows


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* * *. ORS 421.120(1)(1955)(emphasis added). Because the Governor appeared8

to exercise discretion under that statute, the prisoner contended that, when he was

released from prison, it was actually pursuant to the Governors constitutional

authority to commute sentences, which commutation could not be revoked.

In the course of rejecting that argument, this Court referred to the

Governors clemency authority, and to the fact that it was limited by the recipients

power to reject a pardon, by quoting from its prior decision in Carpenter v. Lord,

and that decisions quotation in turn fromWilson and other, secondary authorities,as follows:

* * * It is true that the Governor may pardon an offender by virtue ofhis constitutional power in that behalf, but even that is not effectiveunless it is accepted by the prisoner to whom the pardon is offered.As said by Mr. Chief Justice Marshall in United States v. Wilson, 32U.S. 150, 7 Pet.150 (8 L. Ed. 640):

A pardon is a deed, to the validity of which, delivery is

essential, and delivery is not complete, withoutacceptance. It my then be rejected by the person towhom it is tendered; and if it be rejected, we havediscovered no power in a court to force it on him. Andsee, 67 CJS 574, Pardons, 10b; and 39 Am Jur 546,Pardon, Reprieve and Amnesty, 45, 46, 47.

Fredericks, 211 Or at 323 (courts ellipsis).

Governor Kitzhaber asserts that this Courts citation ofCarpenterand

The statute had recently been amended, in 1955 (Or Laws 1955, ch 505, 1).8

Before the amendment, the Governor had not been involved; rather, a prisoner wasentitled to a reduction to his sentence simply upon the recommendation of thewarden. ORS 421.120(1953). Likewise, in the present version of the statute, theDepartment of Corrections calculates and applies good-time credits; the Governorplays no part.


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Wilson inFredericks is non-bindingdictum. (App Br 25 n 10). But it was not

dictum, which is a statement that is not necessary to the decision, Halperin v.

Pitts, 352 Or 482, 492, 287 P3d 1069 (2012). Rather, this Courts reference in

Fredericks to the acceptance theory is an essential element of it ratio decidendi

by which it rejected the prisoners contention that his sentence had been

unconditionally commuted.

The essential basis of this Courts holding inFredericks was that the terms

of the Oregon good behavior statute were written by implication into the sentenceimposed upon the prisoner by the court. Fredericks, 211 Or at 324. From todays

perspective, that seems uncontroversial. However, this Courts decision was

issued upon a petition for rehearing, after it had earlier reached the opposite

conclusion. Fredericks v. Gladden, 209 Or 683, 308 P2d 613 (1957). Probably

for that reason, the new majority took pains to answer each and every argument

that the original majority, now authors of a dissenting opinion, made.

Part of the argument of the two dissenting justices was that the Governor

possessed a complete power of clemency, so that the Legislative Assembly

could neither enlarge that power, nor exercise any additional overlapping or

duplicative power. Fredericks, 211 Or at 328 (McAllister, J., dissenting). The

most probable reason for the majoritys reference to this Courts earlier adoption

of the acceptance theory inCarpenterwas that it deflected that idea, by showing

that the Governors clemency power was not complete, but instead was subject

to the limitation that it could be exercised only if the offered clemency was


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accepted by the recipient.

Again, the Governor will argue that only a conditional reprieve must be

accepted to be effective. It is true that, if an act of clemency comes conditioned

upon an inmate adhering to certain requirements, it makes sense that the inmate

should have the choice of either accepting the clemency and adhering to the

conditions that come along with it, or, because the attached condition might be

more onerous to him than the sentence being served, rejecting it. Moreover, the

reprieve addressed inDormitzerwas a conditional one, its condition being that thedefendant obey the laws. For two reasons, this court should reject any contention

that the acceptance theory applies only in the case of conditional acts of

clemency.

First, there is no indication in the case law just cited, or in the federal Wilson

case upon which the Oregon Supreme Court relied, that the acceptance theory

applies only to conditional grants of clemency. To the contrary, the Supreme

Court in all three cases Houghton, Carpenter, andDormitzer stated simply,

without qualification, that pardons, commutations, and reprieves could be accepted

or rejected by the person to whom they are offeredbecause they are acts of grace,

not because they might involve certain conditions. To force something upon

someone who does not want it is not an act of grace or favor, which suggests

something motivated by good will toward the intended beneficiary; an act of

benevolence that the recipient does not want is simply a contradiction in terms.

Second, the unusual nature of the temporary reprieve offered by Governor


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Kitzhaber carries its own, inherent conditions, that Mr. Haugen, who considers

complying with them to be more onerous than the alternative, should be free either

to adhere to, or reject.

Neither doesUnited States v. Wilson, the decision of the United States

Supreme Court upon which the Oregon Supreme Court relied inCarpenter, make

its acceptance theory dependant upon the conditional, or unconditional nature of

the pardon. And, a later decision of the United States Supreme Court makes clear,

if there was any uncertainty, that the acceptance concept adopted inWilson doesapply to unconditional pardons. Because this Court has relied twice onWilson in

adopting the acceptance theory, and because Governor Kitzhaber attempts to

distinguish Wilson on the spurious basis that it involved a pre-conviction pardon

(when in fact it involved a post-conviction one), that decision, and a later decision

of the United States Supreme Court applying and explaining it, warrant the

following comprehensive and detailed discussion.

In Wilson, the defendant George Wilson was charged in federal court,

jointly with a co-defendant Porter, in six separate indictments with six offenses, all

stemming from two robberies of carriers taking mail from Philadelphia to two

other places in Pennsylvania. The three pairs of charges were closely related,

alleging that with respect to the robbery of the Kimberton mail, on November 26,

1829, and of the Reading mail, on December 6, 1829, each defendant committed:

(1) obstructing the United States mail; (2) robbery of the mail; and (3) robbery of


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the mail and putting the carriers life in danger. Unlike under contemporary9

practice, in which all of these charges would be tried together, the two defendants

were tried first upon the most serious of the charges, which was robbery of the

Reading mail and putting the carriers life in danger. Both defendants were

convicted, and about a month later, on May 27, 1830, were sentenced to death.

The co-defendant Porter was later hanged. Wilson, on the same day he was

sentenced to death on this one charge, changed his pleas to guilty on the remaining

four charges against him.President Andrew Jackson, on June 14, 1830 that is, afterWilson had

been convicted and sentenced to death on one charge, and pleaded guilty to the

others granted a pardon to Wilson, limited to the conviction upon which he had

already been sentenced to death, for the stated reason that Wilson had been

recommended as deserving of having his death sentence remitted, and because the

convictions on the other charges, to which he had already pleaded guilty, would

likely result in lengthy imprisonment. The pardon stipulated that it did not extend

to any of the other convictions; that was not a condition, but only clarified that

the pardon erased only one of several, related convictions.10

Another charge robbery of the mail and wounding the carrier was9

presented to the grand jury against both defendants, but were returned as not truebills in part, after which the prosecutor declined to prosecute further on thosecharges. The prosecutor also declined to prosecute on the charge of robbery of theKimberton mail and putting the carriers life in jeopardy, leaving five chargesagainst each defendant.

The pardon is quoted verbatim, and in full, in the portion of the report of the10

(continued...)


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When one of the other charges came before the circuit court, upon the

motion of the district attorney for imposition of sentence, the court inquired

regarding the effect of the pardon, understood to have been granted by the

president of the United Statessince the conviction on this indictment, inasmuch

as the charges were closely related. 32 US at 158 (emphasis added). In response,

the defendant stated that he waived and declined any advantage or protection

which might be supposed to arise from the pardon. Id. Apparently out of an

abundance of caution, and because two of the remaining charges arose from thesame criminal incident, the prosecutor presented two questions: whether Wilson

could derive any benefit from the pardon on the other charges, when the pardon

was restricted to the conviction upon which Wilson had been sentenced to death,

and whether Wilson could derive any benefit from the pardon without bringing

the same judicially before the court. 32 US at 158. The circuit-court judges were

(...continued)10

case describing its procedural history. The pardon begins by reciting, Whereas acertain George Wilsonhas been convictedbefore the circuit court of the UnitedStates for the eastern district of Pennsylvania, of the crime of robbing the mail ofthe United States, and has been sentenced by the said court to suffer the penalty ofdeath of the 2d day of July next; and whereas the said George Wilson has beerecommended as a fit subject for the exercise of executive clemency by anumerous and respectable body of petitioners, praying for him a remission of thesentence of death, inasmuch as, in such a case, sentence of imprisonment for

twenty years may yet be pronounced against him on the indictments to which hehas pleaded guilty * * *. 32 US at 153 (emphasis added). The operative partstates, Now, therefore, I, Andrew Jackson, President of the United States * * *have pardoned, and do hereby pardon the said George Wilson the crime for whichhe has been sentenced to suffer death, remitting the penalty aforesaid, with thisexpress stipulation, that this pardon shall not extend to any judgment which maybe had or obtained against him, in any other case or cases now pending before saidcourt for other offences wherewith he may stand charged. Id.


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divided on these points, and so ordered the case certified to the Supreme Court. Id

at 159.

The Supreme Court stated the issue presented as being whether a pardon of

the great offence, excluding the less, necessarily comprehends the less, against its

own express terms. Id. at 160. It continued that, although that question would

not be a difficult one to answer, it was unnecessary to discuss or decide it, for

the reason that the pardon had never been brought before the court and pleaded as

a bar. Id. at 160. The pardon could not be judicially noticed, but like any otherprivate deed, had to be brought before the court by plea, motion or otherwise,

before it could have any effect. The pardon was theprivate, though official act

of the executive magistrate, delivered to the individual for whose benefit it is

intended, and not communicated officially to the court. The defendant had not

pleaded the pardon as a bar, and therefore it could not be considered. The court

considered the pardon to be like any other fact, that had to be brought before the

court. One of the reasons a pardoned person might decline to bring a pardon

before the court, the Supreme Court stated, was that it might be rejected by the

person to whom it is tendered, and that if it be rejected, we have discovered no

power in a court to force it on him. Answering the possible objection that

nobody condemned to death would refuse a pardon, it said that the rule must be

the same in capital cases and in misdemeanors. All at 32 US at 161 (emphasis

added).


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Although the court continued that the pardon may be conditional; and the

condition may be more objectionable than the punishment inflicted by the

judgment, that was only an additional reason why the private act of a pardon had

to be brought before the court by the pardonee to be effective that is, because of

the varied nature of acts of clemency and does not limit the courts broad rule to

conditional pardons. That is shown not only by the fact that the pardon at issue

was an unconditional one, but also by the courts immediately following

paragraph:The pardon may possibly apply to a different person or a differentcrime. It may be absolute or conditional. It may be controverted bythe prosecutor, and must be expounded by the court. Thesecircumstances combine to show that this like any other deed, ought tobe brought judicially before the court by plea, motion or otherwise.

Wilson, 32 US at 161 (quotation marks omitted).

Thus, the acceptance theory applied regardless of whether the pardon was

absolute or conditional; the variety that acts of clemency might take was only an

additional reason for the courts rule that the pardon had to be pleaded, inasmuch

as after it was pleaded, the court would then be able to inquire into it, to determine

its effect. It was the private nature of the pardon, as offered by the executive to the

inmate, that made its proof in court necessary. The Supreme Court also cited and

quoted from several leading English authorities and case law, including

Blackstones Commentaries, to the same effect; that is, that a pardon to be

effective must be accepted, and pleaded by the person in whose favor it is offered,

and that its benefit is waived if not pleaded. Id. at 161-63.


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IfWilson left any uncertainty as to whether only an unconditional, as

opposed to a conditional pardon could be rejected by the pardonee, that

uncertainty was eliminated by a later case, at least for purposes of the federal

constitution. InBurdick v. United States, 236 US 79, 35 S Ct 267, 59 L Ed 476

(1915), an editor of a New York City newspaper was called to testify before a

grand jury that was investigating alleged customs fraud. The witness refused to

testify, invoking his constitutional privilege against self-incrimination. President

Wilson then issued a full and unconditional pardon to the witness, for anycrimes he has committed or may have committed in connection with anything he

might be interrogated about. Burdick, 236 US at 85-86. The witness declined to

accept the pardon and again refused to testify, and was held in contempt and

incarcerated. On appeal, the Government argued that the President had the power

to pardon someone before he was convicted, and that the acceptance of the

pardon is not necessary to its complete exculpating effect. Id. at 87. The

Supreme Court concluded that it was unnecessary to decide whether a pardon may

be granted before the pardonee had been convicted; instead, it found thatWilson

was dispositive upon the second question. Id. at 87-88. The Supreme Court

summarized its reasoning as follows:

That a pardon by its mere issue has automatic effectresistless by him to whom it is tendered, forcing upon him bymere executive power whatever consequences it may have orhowever he may regard it, which seems to be the contention ofthe Government in the case at bar, was rejected by the court[inWilson] with particularity and emphasis. The decision isunmistakable. A pardon was denominated as the private act, theprivate deed, of the executive magistrate, and the denomination was


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advisedly selected to mark the incompleteness of the act or deedwithout its acceptance.

Burdick, 236 US at 90. In response to the suggestion thatWilson dealt only with

conditional pardons, the Supreme Court stated that the pardon passed on [in

Wilson] was not conditional, but, as described above, only limited to a particular

crime in its application. Id. at 92. The Supreme Court quoted fromWilson and, by

adding italics to the word, emphasized the private, although official, nature of an

executives grant of clemency. Id. at 90. Regardless of the alternative of

acceptance whether it be death or lesser penalty, rejection of the offered pardon

remained the right of the individual against the exercise of executive power not

solicited by him nor accepted by him. Id. at 91.

Although it foundWilson to be dispositive, the United States Supreme Court

inBurdickwent on to show how the acceptance theory was in accord with

generally prevailing law. It cited one of its own prior decisions,Ex parte William

Wells, 59 US 307, 15 L Ed 421 (1856), in which it had stated that the court in

Wilson had acted with the fullest knowledge of the law upon the subject of

pardons, and the philosophy of government in its bearing upon the Constitution.

Burdick, 236 US at 91. It also cited a decision of the Supreme Judicial Court of

Massachusetts authored by Justice Gray, later a justice of the United States

Supreme Court, who discussed the case law with the same accurate and masterful

consideration that distinguished all of his judicial work. 236 US at 91-92, citing

Commonwealth v. Lockwood, 109 Mass 323 (1887).


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The result inBurdick was that the contempt was dismissed, and the witness

discharged: Granting then that the pardon was legally issued and was sufficient

for immunity, it was Burdicks right to refuse it, as we have seen, and it, therefore,

not becoming effective, his right under the Constitution to decline to testify

remained to be asserted[.]Burdick, 236 US at 94.

Although this Court has never citedBurdick, that case does clarify and

reiterate the holding inWilson, and shows beyond any doubt that the doctrine

adopted in that case had nothing to do with the conditional or unconditional natureof the pardon involved. It also shows that, in adopting the acceptance concept

of acts of executive clemency, this Court inCarpenterwas acting in conformity

with generally prevailing law at the time construing the clemency power found in

both the federal and state constitutions.

The United States Supreme Court later appeared to backpedal from the

acceptance concept of a pardon. It stated that a pardon in our days is not a

private act of grace from an individual happening to possess power, but rather a

part of the Constitutional scheme, and when granted it is the determination of

the ultimate authority that the public welfare will be better served by inflicting less

than what the judgment fixed. Just as the original punishment would be imposed

without regard to the prisoners consent and in the teeth of his will, whether he

liked it our not, the public welfare, not his consent, determines what will be done.

Biddle v. Perovich, 274 US at 486 (1927).


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These constitute directly contradicting conceptions of the constitutional

power to grant clemency: the acceptance theory of Chief Justice Marshall,

adopted inWilson and reiterated inBurdick, under which an act of clemency is a

private, though official act, versus the public welfare theory of Justice

Holmes, inBiddle. See G. Sidney Buchanan, The Nature of a Pardon Under the

United States Constitution, 39 OHIO STATE LJ 36 (1978)(arguing, on policy and

legal grounds, in favor of Justice Holmes). This Court has already come down

squarely on the side ofWilson and Chief Justice Marshall.Governor Kitzhaber inexplicably attempts to distinguishWilson on the basis

that it involved a pre-conviction pardon. It makes sense, even under the public

welfare conception of clemency, that a person should have the ability to reject a

pardon issued before a conviction, or before a criminal charge is even brought,

inasmuch as a pre-conviction pardon carries an imputation of guilt and

acceptance a confession of it. Burdick, 236 US at 94. Governor Kitzhaber

asserts thatWilson involved a defendants attempt to reject a pardon that was

issued before his conviction; that Wilson is a case that is limited to a pre-

conviction pardon, and that that fact was critical to the outcome in that case.

(App Br 17). He further asserts that the Supreme Court inWilson analogized the

pre conviction pardon to a deed (App Br 17, emphasis added); and thatWilson

simply stands for the proposition that where the pardon is delivered to the

individual directly before his conviction, a court could not take judicial notice of

it. (App Br 18; emphasis added). He even goes so far as to write, but without


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direct quotation, that inWilson, the Courtwas careful to note that the pardon was

issued before the conviction. (App Br 27; emphasis added).

But, as shown above, it is indisputable that Wilson involved a post-

conviction, not a pre-conviction pardon. President Jackson pardoned Wilson for

the crime for which he had already been sentenced to death, and after he had

already changed his pleas to guilty on the remaining charges. The Supreme Court

was not careful to note the pre-conviction nature of the pardon, because it was a

post-conviction pardon.There is nothing inherently implausible about the idea that inmate has the

power to reject an act of clemency, such as a commutation that would result in his

release from prison, or a reprieve in a non-capital case, so that he remains

incarcerated against the will of the states executive power. InBollinger v. Board

of Parole, 329 Or 505, 992 P2d 445 (1999), this Court held that, under then-

existing statutes, an inmate could elect to reject an offer of parole and remain in

prison until the expiration of his sentence.

Even ifDormitzers statement that reprieves can be accepted or rejected is

not extended beyond the facts involved in that case, which involved a conditional

reprieve, there is no basis for concluding that a person offered clemency should

lack the ability to reject it, when the clemency offered is unconditional. Cases

cited by this Court inHoughton show that the broader power carries the ability to

attach a variety of conditions to an act of clemency, such as leaving the state, or

being subject to reincarceration without a judicial determination, or refraining


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from the use of alcoholic beverages, or using all proper exertion to support a

relative. Houghton, 49 Or at 235-37. The attachment of conditions to an act of

clemency, a power not mentioned in either the federal or state constitution, might

be thought of as a broader power than the power to grant an unconditional pardon,

commutation, or reprieve. If thegreaterpower of a pardon comes with the

inherent limitation that it can be rejected by the person in whose favor it is granted,

it should follow that thelesserpower conferred upon the Governor to grant a

pardon or reprieve, should also be so limited, not that it should be less limited.Governor Kitzhabers essential argument on appeal, boiled down, is as

follows: (1) The scope of the Governors power to grant clemency conferred by

Article V, section 14 of the Oregon Constitution, like the Presidents power under

the United States Constitution and the power of Great Britains monarch before

that, was intended to be and always has been broad; (2) to make a grant of

clemency subject to its acceptance by the recipient would be a limitation on that

power (except when the clemency is conditional); (3) therefore, any unconditional

grant of clemency is effective regardless of whether it is accepted by the recipient.

The argument is simplistic. Undoubtedly, an executivesselection of a

particular prisoner as deserving of clemency is broad. But that says nothing about

the scope of the clemency power in other respects. Thus, Governor Kitzhabers

repeated description of his constitutional clemency power as plenary is

unhelpful. For example, does the Presidents power under Article II, section 2 of

the United States Constitution to grant Reprieves and Pardons for Offenses


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against the United States, except in Cases of Impeachment include the power to

pardon a contempt of court? If the Presidents pardon power was plenary, or

absolute, it would seem that such a question would not even come within the

purview of a reviewing court, or that if it did, would be an easy question to

resolve. In deciding that the President does have the power to pardon a criminal

contempt, the United States Supreme Court did not refer to the plenary power of

the President which might also have led the Court simply to have declined to

decide the issue at all, on political question grounds but instead engaged in alengthy discussion of the scope and history of the Presidents clemency power. Ex

parte Phillip Grossman, 267 US 87, 45 S Ct 332, 69 L Ed 527 (1925).11

Defendant also asserts, early in his brief, that case law surrounding Article

V, section 14 demonstrates that a governors clemency power is unfettered by

any requirement that a grant of clemency be accepted by the recipient. (App Br 2).

The brief fails miserably to deliver on this promise. As support it cites exactly one

case: an unnamed decision from the year 1220 that is digested in David Jenkins,

Eight Centuries of Reports, Case LXII, Third Cent, p 139 (4 ed 1885). (App Brth 12

The political question doctrine is of long provenance in the United States11

Supreme Court, and one of the situations in which the Court will decline toexercise judicial review is when there is a textually demonstrable constitutionalcommitment of the issue to a coordinate political department. Baker v. Carr, 369US 186, 217, 82 S Ct 691, 7 L Ed 2d 663 (1962).

Jenkins Centuries was prepared by Judge Jenkins during his years of12

imprisonment as a royalist during the Interregnum, and was first published in1661. The Century in the title refers to the treatises grouping of cases by thehundred, rather than to 100 years. The year this particular case was decided is not

(continued...)


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11). The abstract of the case, in its entirety, is as

follows:

The king grants a pardon, with several exceptions of certainpersons and offences; he that will have the benefit of it, ought toplead that he is not one of the persons excepted.

If the king pardons a felon, and it is shewn to the court; and yetthe felon pleads not guilty, and waives the pardon, he shall not behanged; for it is the kings will that he shall not; and the king has aninterest in the life of his subject. The books to the contrary are to beunderstood, where the charter of pardon is not shewn to the judges.

This brief, and cryptic summary of a decision nearly 800 years old is weak enoughauthority by itself, given this Courts repeated approval of the contrary view.

More importantly, it is cited, but explicitly disavowedas contrary authority by the

United States Supreme Court inWilson.

Here again, Governor Kitzhaber completely misrepresentsWilson; this time,

in how it treats the case fromJenkins. He states thatWilson cite[s] [Jenkins] for

the proposition that where the king pardons a felon but the felon wishes to waive

the pardon, he cannot be hanged. (App Br 19-20). That is merely misleading, in

that describing an opinion as citing a case for a proposition implies approval,

whereas actually the Supreme Court cited the case only as apparently contrary

authority, which it then construed in such a way as to harmonize with other,

supporting authorities upon which the Supreme Court relied. But defendants

(...continued)12

noted inJenkins Centuries, but is found through its citation 8 E. 4, 7 in themargin and the table of cases, and then by locating that citation in the EnglishReports database maintained by the Commonwealth Legal Information Institute(available at: www.commonlii.org/uk/cases/EngR).


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brief then continues:

Although the Court seemed unwilling to extend that principleto preconviction pardons, were the felon not to plead the pardon, the Courtotherwise approvedof the notion that, once an individual is convictedand then receives a pardon, that individual cannot waive the pardonand force his government to execute him.

(App Br 20; emphasis added). This sentence is a travesty of legitimate legal

argument. The worst of it is not its egregious distortion of Wilsons treatment of

the case fromJenkins Centuries. Rather, it is its statement that the Supreme

Court approved of the notion that once an individual is convicted he cannotwaive a pardon, which is an utter fabrication.

The Supreme Courts treatment of the case inWilson is as follows.

Following several paragraphs citing statements from three authorities supporting

its acceptance or waiver conception of pardons Hawkins Pleas of the Crown,

Comyns Digest, andBacons Abridgement the Court says that it has met with

only one case which might seem to question it. Wilson, 32 US at 162. Then,

after quoting the entire second paragraph of theJenkins case, as quoted above, the

Court continues with the following paragraph:

This vague dictum supposes the pardon to be shown to thecourt. The waiver spoken of is probably that implied waiver whicharises from pleading the general issue; and the case may beconsidered as determining nothing more than that the prisoner may

avail himself of the pardon by showing it to the court, even afterwaiving it by pleading the general issue. If this be, and it most

probably is the fair and sound construction of this case, it isreconciled with all the other decisions, so far as respects the presentinquiry.


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Wilson, 32 US at 162. This is the Courts entire discussion of the case from

Jenkins Centuries. Chief Justice Marshall for the Supreme Court could not have

been more precise and clear. He reconciles the case with the other authorities

upon which he depends in adopting the acceptance theory, by treating it as

involving only a pleading issue; that is, as holding that, if a defendant pleads only

the general issue, he is not thereafter barred from pleading a pardon. It cannot13

be, as defendant suggests, that the Supreme Court exempted capital cases from its

rule, because the court explicitly stated the contrary: It may be supposed that nobeing condemned to death would reject a pardon; but the rule must be the same in

capital cases and in misdemeanors. Wilson, 32 US at 161.

Because, as already noted, the Supreme Court inWilson was addressing a

post-conviction, rather than pre-conviction pardon, it could not possibly have

distinguished theJenkins case on the basis that it was a pre-conviction pardon.

Nowhere in its opinion does it draw any distinction between pardons on this basis.

There is not the slightest hint anywhere in the Courts opinion that it approved

of the notion, as defendant asserts it did, that once a defendant is granted a post-

conviction pardon, he cannot waive it. The idea is pure fantasy.

B. Defendant has not demonstrated sufficient cause for this Court tooverrule its previous clemency precedents.

General issue means: A common law pleading, abolished as such in most13

states using a reformed system of pleading, consisting of a denial in short form ofall that is material in the complaint or declaration. Somewhat analogous to thegeneral denial of modern code and rules procedure. Ballentines Law Dictionary(3d ed 1969), p 520.


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The foregoing precedents are consistent over a period of 50 years. In

addressing prior constructions of a statute or constitutional provision, this Court

begin[s] with the assumption that issues considered in our prior cases are

correctly decided, and the party seeking to change a precedent must assume

responsibility for affirmatively persuading us that we should abandon that

precedent. Farmers Insurance Company of Oregon v. Mowry, 350 Or 686, 698,

261 P3d 1 (2011), quoting State v. Ciancanelli, 339 Or 282, 290, 121 P3d 613

(2005). Defendant has failed to meet that burden. For several reasons, this casewould be an especially inappropriate vehicle for the overruling of this Courts

precedents adopting the acceptance theory of clemency.

First, the multiple precedents defendant seeks to overturn have been

consistent over a long period of time.

Second, the idea adopted inBiddle v. Perovich, and urged upon this Court

by defendant and his amici, is that clemency is part of the Constitutional scheme

when granted is a determination by the ultimate authority that the public welfare

will be better served by inflicting less than what the judgment fixed. Biddle, 274

US at 486. That executive clemency is part of the constitutional scheme, both

federal and in this state, and that a grant of clemency serves the public welfare as

well as the individual interest of the recipient, is no more than a truism. The

criminal code of every country partakes so much of necessary severity that without

an easy access to exceptions in favor of unfortunate guilt, justice would wear a

countenance too sanguinary and cruel. The FederalistNo. 74 (Hamilton). That


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is, the determination of the executive that a particular individual is deserving of

mercy, in the face of justice that has been administered too cruelly, is by definition

an act that also serves the public welfare, through its amelioration of a sentence in

an individual case. That does not detract from this Courts description of14

executive clemency as an act of grace or favor, which by its nature cannot be

forced upon an unwilling recipient.

Third, the prisoner inBiddle was attempting to win his freedom from

incarceration, even though the President had only commuted his sentence formurder from death to life imprisonment, rather than pardoned him. Perovich had

been convicted of murder in Alaska and sentenced to death. President Taft

commuted his sentence to life, and also directed that he serve his life sentence in a

penitentiary designated by the Attorney General. After his transfer to the federal

penitentiary in Leavenworth, Kansas, Perovich petitioned for a writ of habeas

corpus. He argued that his removal from jail [in Alaska] to a penitentiary, and the

order of the President, were without his consent and without legal authority,

Defendantsamici describe the reprieve as serving a public purpose because it14

will allow Oregonians to reconsider the death penalty, and gives them theopportunity to fully debate and assess its wisdom. (Amicus Br 2, 14-15).

They do not explain, however, what has prevented or hindered the public from

engaging in that reconsideration or reassessment. Amici also discern a nationaltrend in favor of abolition of the death penalty. (Amicus Br 20 n 9). They do soonly by ignoring contrary evidence. In the November, 2012 election, for example,California population 37 million voted by a heavy margin (60.2 to 37.1percent) to re-elect President Obama over his challenger, but at the same timevoted by a margin of 52 to 48 percent against Proposition 34, which would haveabolished Californias death penalty. (Data from California Secretary of Stateofficial website).


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Biddle, 274 US 485, and that as life imprisonment was a different kind of

punishment than death, that sentence could not be imposed through a

commutation without his consent. The district court agreed and ordered the

prisoner to be set at large, id., at 485; that is, the district court did not order

Perovich returned to Alaska so that he could be executed, but only that he be freed

from incarceration in Kansas, which incarceration was without legal authority.

Finally, the unusual nature of Governor Kitzhabers reprieve, and the burden

it puts upon plaintiff, makes this an especially inappropriate case to use to overturnthis Courts long-standing precedents. The reprieves stated purpose in serving

what the Governor perceives to be the greater welfare, as against plaintiffs

individual rights, such as they are, makes this a particularly inapt case in which to

depart from precedent and hold that clemency can be forced on a prisoner who

does not want it.

A person who has been condemned to death by a court has obviously lost a

large measure of his liberties. But he has not surrendered all of them. He retains,

first, a liberty interest in being free from the imposition of cruel and unusual

punishment, while incarcerated awaiting the imposition of punishment. Second, he

retains the irreducible dignity of conscience to which every human being is

entitled, up until he takes his last breath. This brief next discusses these two

impregnable liberty interests upon which no government can encroach.


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1. The reprieve subjects plaintiff to cruel and unusual punishment underthe Eighth Amendment and the Fourteenth Amendments Due ProcessClause.

As already noted, the reprieve subjects plaintiff to an extended period of

uncertainty against his will. The reprieve could end unexpectedly at any time, or

could last for up to seven years.15

Accordingly, a substantial question is presented in the underlying case

whether the ostensible reprieve subjects petitioner to cruel and unusual

punishment. [T]he Eighth Amendment prohibits all punishment, physical andmental, which is totally without penological justification,Farmer v. Brennan, 511

US 825, 835(1994)(quotation marks omitted), and [a] sentence lacking any

legitimate penological justification is by its nature disproportionate to the offense.

Graham v. Florida, 130 S Ct 2011, 2028 (2010);see alsoGregg v. Georgia, 428

US 153, 183 (1976)(the sanction imposed cannot be so totally without

penological justification that it results in the gratuitous infliction of suffering).

The right to be free from cruel and unusual punishment flows from the basic

precept of justice that punishment for crime should be graduated and

proportioned to both the offender and the offense. Miller v. Alabama, 132 S Ct

2455, 2458 (2012)(emphasis added), quotingRoper v. Simmons, 543 US 551, 560

(2005).

Defendantsamici bizarrely describe the reprieve as expiring no sooner than15

the end of defendants service as Governor. (Amicus Br 1). Governor Kitzhaberobviously has no power to make his reprieve last any longer than his service asgovernor. If it does last longer than that, it will be only because his successor asGovernor continues it.

7/29/2019 Answering brief on the merits of respondent Gar

Answering brief on the merits of respondent Gary D. Haugen

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