Oregon Supreme Court Reverses AWOP. Dog Bites Man.

This wikilog article is a draft, it was not published yet.

by: Jessbarton • May 26, 2011 • no comments

To quote the Supreme Court's media release, in a case called State v. Gilmore, decided yesterday, the court unanimously

reaffirmed that when a defendant whose right to counsel has attached initiathttp://Oregon Supreme Court Reverses AWOP. Dog Bites Man.es a discussion of the charged crimes with police officers, the Oregon Constitution requires the state to show that the defendant knowingly and intentionally waived his or her right to counsel; that is, the state must show not only that the defendant knew of the right to counsel but also the consequences of speaking to the officers without counsel present."

Under the facts of the case, the court concluded:

[E]ven assuming that defendant initiated the discussion of her pending charges, the state failed to present sufficient evidence that defendant knowingly and intentionally waived her right to counsel. * * * Without Miranda warnings or some other evidence showing that defendant understood the benefits she was giving up by discussing her pending charges without her lawyer present, the trial court lacked a sufficient basis from which to conclude that defendant knowingly and intentionally waived her Article I, section 11, right to counsel.

Gilmore was a nice win for OPDS chief deputy Ernie Lannet, who handled the appeal. It also was a nice win for Gilmore's trial counsel, Klamath Falls attorney Scott MacArthur. As Ernie explained, Scott "did an excellent job setting the case up."

But Gilmore implicates hugely significant policy concerns that go far beyond the case itself. First is the fact that the Supreme Court based its decision on a "reaffirmance" of preexisting case law. In other words, the court announced no new law. All it did was correct lower court errors in applying preexisting law.

Which is not what the Supreme Court exists to do. That court is the state's policy-making court, yet in Gilmore it announced no policy. Again, all it did was correct lower court errors in applying preexisting policy (case law).

The Court of Appeals is Oregon's error-correction court, so it should have corrected the trial court error. But the Court of Appeals failed. As the Supreme Court explained-and this is the most disturbing aspect of the Gilmore decision-the Court of Appeals "affirmed [the trial court's] ruling and the resulting judgment without opinion."

This business of the Supreme Court reversing a Court of Appeals decision affirming without opinion (AWOP) is something that I've addressed in prior articles posted on this web site. But surely a case that's big enough to be taken up by the Supreme Court is a case that's big enough at least to get a written opinion from the Court of Appeals. Put the other way, any case that the Court of Appeals deems unworthy of an opinion ought to be a case that the Supreme Court would deem unworthy of its time.

From that perspective, the Supreme Court should rarely see fit to allow review of a Court of Appeals AWOP. Even more rarely should the Supreme Court allow review of an AWOP and then reverse the Court of Appeals. And what should be rarest of all-in fact, what virtually should never happen-is the Supreme Court allowing review of an AWOP and then reversing the Court of Appeals unanimously.

Yet that's exactly what happened in Gilmore. But not just in Gilmore. A survey of Supreme Court case law from the last several years would disclose that the court reviews a substantial number of cases that the Court of Appeals AWOP'd. 1 The survey also would disclose that the Supreme Court reverses a substantial number of those AWOP decisions and that, like Gilmore, a big chunk of those reversals are unanimous.

Which begs the question: Why does the Supreme Court see fit to allow review of and reverse in so many cases that the Court of Appeals deemed unworthy of even an opinion? One reason is that, as the Court of Appeals itself acknowledges, it uses its AWOP authority as a case- management mechanism. 2 All too frequently, the mechanism fails.

Consider this. The legislature created the Court of Appeals in 1969. It then had six judges. In 1977, to help the court manage its case load, the legislature increased the court's size by two-thirds, to 10 judges. Since 1977 the court's size has stayed at 10, but Oregon's population has nearly doubled!

To the extent that the frequency of Supreme Court actions on the merits of Court of Appeals AWOPs is a symptom of a terribly overburdened court, one solution is to enlarge the size of the court. Presently a bill that would increase the court's size by 30%, from 10 to 13, is in the Joint Ways & Means Subcommittee on Public Safety. Rep. Mary Nolan, D-Portland, co- chairs that subcommittee. She also serves on the House Judiciary Committee. At a Judiciary Committee hearing earlier this week, several of Rep. Nolan's fellow committee members asked her about the chances of funding the bill that would increase the court's size. Rep. Nolan reported that the chances weren't at all good.

Which means more unwarranted AWOPs, as well as continued delays in the court's overall management of its case load, will be the norm, and will stay the norm until such time that enlarging the court gains majority political support. The fact that the state constitution requires two-thirds supermajorities to raise taxes and reduce the lengths of certain (costly) prison sentences, acquiring that majority support will require political sacrifice elsewhere.

A possible sacrifice would be to follow the lead of our sister state to the north, and abandon our decade-old commitment to a statewide Court of Appeals. This would involve dividing the court into divisions. 3 The concept could attract support from rural and fiscally conservative legislators who've grown tired of a court that's exclusively comprised of residents from the Willamette Valley's urban centers (the Portland area in particular). 4

Whether geographic diversity pe se would improve the court's quality is beside the point. The point is that geographic diversity may be key to enlarging the size of the court. Enlarging the court would improve its quality, so the time may have come for the state to abandon its commitment to a statewide Court of Appeals in favor of geographic diversity.

---

1. Just yesterday, in a post-conviction appeal called Coble v. Howton, the Supreme Court allowed review of yet another AWOP decision.
2. In a moment of candor she may now regret, a former Court of Appeals staff attorney once told me that her colleagues considered it a "personal victory" when they persuaded the court panel to decide a case by AWOP, rather than by opinion. After all, she explained, no opinion meant less work for a terrifically overburdened court.
3. The Washington Court of Appeals is divided into three divisions.
4. Ever since 1980, when John Warden resigned from the Coos County bench to accept an appointment to the Court of Appeals, only to be soundly defeated in a retention election by then Multnomah County judge (and former district attorney) George Vanhoomissen, persons from outside the valley's urban centers have been loath to seek appointment to the Court of Appeals.