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A Rose is a Rose is a Rose . . . Unless the Legislature Says It's a Tulip

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by: Ryan • September 12, 2013 • one comment

Which of these is not like the other.

Simplification of pleading may be of benefit to an accused, as it tends to clarify the charge against him, but it has been held that the legislature may not constitutionally authorize the omission from an indictment of allegations necessary to describe a specific crime. Commonwealth v. Freelove, 150 Mass. 66 22 N. E. 435. It is not within the power of the legislature to declare that to be an indictment which does not set forth those elements of a criminal offense required by the constitution to be contained in an indictment. 27 Am. Jur., Indictments and Informations, section 2; People v. Bogdanoff, 254 N. Y. 16, 171 N. E. 890, 69 A. L. R. 1378. [Emphasis added.]

State v. Smith, 182 Or 497, 501-502 (1948)

1948? Got anything more recent?

State v. Wedge, 293 Or 598, 652 P2d 773 (1982), as described in State v. Ice, "explain[ed] that, although the statute treated firearm use as a mere sentencing factor, when applied in the context of a robbery conviction, it in effect * * * create[d] a new crime' of first-degree robbery using a firearm. Id. at 608." [Emphasis added.]

Ah, but now we get to today . . . .

In our view, even if we assumed that the Notice Clause in Article I, section 11, incorporated common-law pleading requirements, it is difficult to identify a consistent or coherent common-law practice that would require indictments to plead sentence enhancement facts that, as a matter of legislative intent, are not elements of the crime.

State v. Reinke, __ Or ___ (2013)

The US Supreme Court has touched on the larger issue as well, which is, what is the real difference between a sentencing enhancement and an element.

This argument has two defects. First, it rests on an assumption that Apprendi and its progeny have uniformly rejected: that in determining the maximum punishment for an offense, there is a constitutionally significant difference between a fact that is an "element" of the offense and one that is a "sentencing factor." See, e.g., 530 U. S., at 478; Ring, 536 U. S., at 605.

Southern Union v United States (June 21, 2012)

I don't mean to suggest that these quotations, by themselves, suggest an irrefutable error in today's Oregon Supreme Court decision. For example, the Wedge analysis involves the right to a jury trial, as opposed to the right to an indictment. This court has no problem deciding that an element for one constitutional provision is not an element for another. That discrepancy should give the Court pause. One may ask why the meaning of "element" is different in one part of Article I, section 11, than in another part of the exact same constitutional provision. But the court breezes by that problem as though it doesn't exist, a consistent problem with Justice Kistler's opinions.

Let me expand on that a little. Justice Kistler can really get into the nitty-gritty of case law and analysis when it helps his conclusion. He bludgeons you with the depth of his research. But his opinions become glib and superficial when the case law and argument are against him. So he casually makes the argument that even if Article I, section 11, did require enhancement facts to be pleaded in the indictment, it would have been subsequently overruled by Article VII (Amended), section 5, which does not require it and which was added to the Oregon Constitution later in time. But they aren't in conflict as courts usually understand that phrase, especially when claiming that one constitutional provision implicitly amends another. At best, Article VII, section 5, is silent on the issue. The two provisions can be easily reconciled. Compare that analysis with Judge Kistler's opinion in State v. Ofodrinwa from earlier this year, which held that one statute, if interpreted in a roundabout way to make sex with a 17 year old a felony, and another statute plainly and explicitly making sex with a 17 year old a misdemeanor were not in conflict.

One would also suspect that the meaning of Article VII (Amended), section 5, would have hinged on the public understanding of Article I, section 11, as understood in the Smith quote above, but the court doesn't even appear to consider that possibility.

I've only quickly read the opinion, but even one significant error jumps out. The opinion states:

"See Hurtado, 110 US at 534-35 (holding that the federal constitution permitted states to use a prosecutor's information to charge felonies in derogation of the common law).

The court then describes a "prosecutor's information" in a footnote:

"A prosecutor's information was a statement, usually sworn, that had not been tested either by the grand jury or the court and was not sufficient at common law to charge a felony."

But this is misleading if it's intended to suggest that Hurtado did not require that the prosecutor's information be tested by the court. What Hurtado actually said was:

[We] are unable to say that the substitution for a presentment or indictment by a grand jury of the proceeding by information, after examination and commitment by a magistrate, certifying to the probable guilt of the defendant, with the right on his part to the aid of counsel, and to the cross-examination of the witnesses produced for the prosecution, is not due process of law.

Hurtado at 538.

Hard to see how today's opinion doesn't blatantly misread Hurtado and it makes me question how accurately the opinion describes other very old opinions. Two states -- Idaho and Georgia -- have both held that the federal due process clause itself requires a preliminary hearing or the equivalent in state prosecutions. Ironically, both those states quote Hurtado case for that proposition. Most states have never had to reach that question, because most states have the kind of state constitutional guarantees to a grand jury or a preliminary hearing that Oregon had until today.

Judging from today's opinion, and other aspects of Ofodrinwa I haven't written about yet, we see a pattern of using what appears to be exhaustive research to disguise an absence of common-sense. And that exhaustive research becomes cursory and thin when it conflicts with the sought-after result. But most of all, his opinions cannot see the forest through the underbrush. Constitutional rights, whether to a jury trial or to an indictment, do not hinge on the label given by the legislature, when there is no practical or logical distinction between one and the other. And as the above quote from the US Supreme Court makes clear, there is no logical distinction between an enhancement fact and an element. A rose by any other name is, apparently, not a rose at all.