Brief on behalf of Gov. Kitzhaber

7/29/2019 Brief on behalf of Gov. Kitzhaber

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FILED December 21, 2012 01 :28 PAppellate Court Records

IN THE SUPREME COURT OF THE STATE OF OREGON

GARY D. HAUGEN,Plaintiff.Respondent,

v.JOHN KITZHABER, Governor of theState of Oregon,

Defendant-Appellant.

I

Marion County CircuitCourt No. 12C16560

CA Al52412

SC S060761

BRJEF ON THE MERITS OFAPPELLANT, JOHN KITZHABER,

GOVERNOR OF THE STATE OF OREGON

Cetiified Appeal of the Judgment of the Circuit Courtfor Marion CountyHonorable Tll\10THY ALEXANDER, Judge

HARRISON LATTO #812890Attorney at Law

1631 N.E. BroadwayNo. 533Portland, OR 97232Telephone: (503) 223-0783Email: [email protected]

Attorney for Plaintiff-Respondent

ELLEN F. ROSENBLUM #753239Attorney GeneralANNA M. JOYCE #013112Solicitor GeneralJAKE J. HOGUE # 123459Assistant Attorney General

1162 Court St. NESalem, Oregon 97301-4096Telephone: (503) 378-4402Email: anna.joyce@doj .state.or.us

Attorneys for Defendant-Appellant

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TABLE OF CONTENTSSTATEMENT OF THE CASE ............................................................................ !

Question Presented ..................................................................................... 2Proposed Rule ofLaw ................................................................................ 2Statement of Facts ...................................................................................... 2Summary ofArgument ............................................................................... 3

ARGUMENT ........................................................................................................ 5A. Article V, section 14's text requires no acceptance of thereprieve ............................................................................................. 6B. The historical circumstances leading to the enactment ofArticle V, section 14, demonstrate that an acceptance (or

rejection) by the beneficiary has no bearing on the validityof the clemency ................................................................................ 91. Under English law, the king's clemency power wasplenary .................................................................................. 92. As developed in the United States, the executive'sclemency powers were similarly plenary ........................... 123. As enshrined in Article V, section 14, of the OregonConstitution, the Governor's clemency power was,

like the common law and United States Constitution,plenary ................................................................................15C. Caselaw surrounding the executive's clemency powerdemonstrates that the power is broad and has never required"acceptance" from the inmate ........................................................ 16

1. Caselaw that existed at the time of the framing ofOregon's Constitution demonstrates that the power togrant clemency is untethered from any requirementthat an unconditional grant of clemency be accepted .......... 172. Oregon's caselaw, like the United States SupremeCourt caselaw, has never required acceptance in theface of an unconditional grant of clemency ........................23

D. Governor Kitzhaber's reprieve-which is unconditional-isvalid, despite the fact that Haugen purports to reject it. ................ 26EXCERPT OF RECORD


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TABLE OF AUTHORITIES

Cases CitedBiddle v. Perovich,

274 US 480, 47 S Ct 664, 71 LEd 1161 (1927) ................................ 22, 23Burdick v. United States,236 US 79,35 S Ct 267,59 LEd 476 (1915) .................................... 23, 27

Carpenter v. Lord,88 Or 128, 171 P 577 (1918) ........................................................ 25, 26,27Ex Parte Dormitzer,119 Or 336, 249 P 639 (1926) ............................................................ 25, 27Ex Parte Houghton,

49 Or 232, 89 P 801 (1907) ...................................................................... 24Ex parte Lockhart,3 Ohio Dec Reprint 279 (1855) .......................................................... 20, 21Ex Parte Wells,59 US 307, 15 LEd 421 (1855) ............................................................... 18Flavell's Case,8 Watts & Serg 197, 1844 WL 5100 (Pa 1844) ....................................... 20Fredericks v. Gladden,

211 Or 312,315 P2d 1010 (1957) ...................................................... 25, 27McDowell v. Couch,6 La Ann 365, 1851 WL 3807 (1851) ......................................................21People v. Potter,1 Edm Sel Cas 235 (NY 1846) ................................................................. 20Priest v. Pearce,

314 Or 411, 840 P2d 65 ( 1992) ............................................................ 6, 28Ratcliffe's Case,

Foster 40 ( 1791) ....................................................................................... 19Smothers v. Gresham Transfer, Inc.,332 Or 83, 23 P3d 333 (2001) .................................................................... 6

State v. Fuller,1 McCord 178, 1821 WL 724 (SC 1821) ................................................. 21United States v. Wilson,

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32 US 150, 8 LEd 640 (1833) .................................. 17, 18, 19, 24, 25,27Wood v. Fitzgerald,

3 Or 568 (1870) ........................................................................................ 23Constitutional and Statutory Provisions

Or Const, Art V, 14 ............................. 1, 2, 3, 5, 6, 9, 15, 16, 19, 23, 25, 26,28US Const, Art II, 2, c1 1 ................................................................................... 14

Other AuthoritiesAlexander M. Burrill,A New Law Dictionary and Glossary: Containing Full Definitions

of he Principal Terms of he Common and Civil Law 548 (1850) ............ 7Christen Jensen,The Pardoning Power in the American States 11-15 (1922) ................... 14Claudia Burton,A Legislative History of he Oregon Constitution of1857- Part II

(Articles III- VII), 39 Willamette L Rev 245 (2001) ................................. 15Daniel T. Kobil,

The Quality ofMercy Strained: Wresting the Pardoning Powerfrom the King, 69 Tex L. Rev. 569 (1991) ......................................... 12, 13David Jenkins,Eight Centuries ofReports 139

(Theodore Barlow trans, 4th ed 1885) ( l 777) ..........................................11John Bouvier,

1 A Law Dictionary Adapted to the Constitution and Laws ofthe United States ofAmerica 449 (1839) ................................................... 7Joseph Chitty,

1 A Practical Treatise on the Criminal Law 522 (1819) ................... ! 0, 11Joseph Chitty,A Treatise on the Law of he Prerogatives of he Crown andthe Relative Duties and Rights of he Subject 89-90 (1820) .......... 9, 18, 19Noah Webster,

2 An American Dictionary o f he English Language 56 (1828) ................ 8Noah Webster,

1 An American Dictionary of he English Language 95 (1828) ................ 7Recent Case,

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41 HarvLRev98(1927) ......................................................................... 18William Blackstone,

4 Commentaries on the Laws ofEngland 387-88 (1769) .................. 10, 11William F. Duker,

The President's Power to Pardon: A Constitutional History,18 Wm&MaryLRev475 (1977) .................................................9, 12,13

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BRIEF ON THE MERITS OFAPPELLANT, JOHN KITZHABER,

GOVERNOR OF THE STATE OF OREGON

STATEMENT OF THE CASEKings, presidents, and governors have long possessed the power to grant

individuals clemency in the form of a reprieve, thereby temporarily suspendingor delaying an inmate's sentence. The power is one that, from its Englishorigins, has been exercised for any number of reasons: as an act of grace, toensure that justice was properly administered, or to recruit individuals into thearmed forces. Although the reasons for granting clemency have been shaped byhistory, politics, or personal favor, the underlying power to grant clemency hasbeen plenary, unfettered by constraints on an otherwise sweeping authority.That holds particularly true when it comes to a reprieve of a death sentence:from the earliest mentions in English law, courts and commentators have beenemphatic in concluding that no individual can force its government to carry outan execution in the face of an executive reprieve.

In Oregon, the power of the governor to grant clemency wasmemorialized in Article V, section 14. The question here is narrow yet of firstimpression: whether, when the governor exercises his authority under ArticleV, section 14, to grant a temporary and unconditional reprieve to a death-rowinmate, that reprieve is only valid and effective upon acceptance by the inmate.


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2Consistent with hundreds of years of common law, the answer to that questionis plainly no. An inmate simply possesses no power to reject an unconditionalreprieve and force his government to execute him.Question Presented

Article V, section 14, grants the governor broad power "to grantreprieves, commutations and pardons, after conviction, for all offences [sic]except treason[.]" Under that provision, is the granting of an unconditionalreprieve rendered invalid if the grantee purports to reject it?Proposed Rule of Law

No. The text, context, history, and caselaw surrounding Article V,section 14, demonstrate that the governor's power to grant an unconditionalreprieve is unfettered by a concomitant requirement that the grantee accept the

repneve.Statement of Facts

The relevant facts are few and undisputed. Gary Haugen was convictedof aggravated murder in 2007. He received a sentence of death. (ER 3 . Afterthis court upheld his conviction and sentence, Haugen decided to forgo anyfurther appeals. (ER 3). The trial court issued a death warrant, and set anexecution date ofDecember 6, 2011. (ER 3). Before that date, GovernorKitzhaber issued a reprieve for the length of his term as governor. (ER 1, 3).Yet, as the trial court here found, Haugen "has repeatedly and unequivocally


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3rejected and declined the reprieve and demanded that the sentence of death becarried out." (ER 3 ).

Haugen thus brought this declaratory judgment action. He sought ajudgment declaring that Governor Kitzhaber's reprieve was "invalid andineffective" and directing the court proceed with the execution. (ER 16).Haugen moved for judgment on the pleadings, a motion that the trial courtgranted. The trial court, relying on several United States and Oregon Supreme

Court opinions, concluded that Haugen "has a right to reject the Governor'sreprieve." (ER 8). Because Haugen had that right, the court declared GovernorKitzhaber's reprieve "ineffective." (ER 8).Summary ofArgument

Governor Kitzhaber issued an unconditional temporary reprieve to GaryHaugen pursuant to his power under Article V, section 14. Haugen purported toreject that reprieve. The trial court concluded that Haugen's rejectioncontrolled; that is, that the governor's reprieve was invalid because Haugen didnot accept it. But that ruling cannot stand in light of the governor's broad andplenary powers under Article V, section 14.

Article V, section grants the governor the power to "grant reprieves."The text, context, historical circumstances, and caselaw surrounding theprovision demonstrate that the governor's power is plenary. From its Englishroots, the power to grant clemency has been untethered from any requirement


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4that to be valid, the clemency must be accepted by the beneficiary. That heldparticularly true where rejecting the grant of clemency would force thebeneficiary's government to execute him: from its earliest mentions in Englishlaw, it has been clear that an individual possesses no power to force hisgovernment to carry out a sentence of death. The framers of the United StatesConstitution enshrined that common-law concept of the clemency power in theUnited States Constitution, as did the framers of the Oregon Constitution. The

executive possesses a unique and broad power to determine, in his or her role asleader of a democratic state, that clemency is appropriate, and the beneficiaryhas no power to reject it.

The same, of course, cannot be said of grants of clemency that arepremised on the inmate fulfilling some condition. In those cases, it has longbeen assumed that the beneficiary of the clemency must "accept" the condition.But whatever symbiotic premise accompanies a conditional grant of clemency,none accompanies a grant of clemency-like the one here-that is untetheredfrom any condition that requires acceptance from the inmate.

Because the governor's power under Article V, section 14 to grant anunconditional reprieve of a death sentence is unfettered, Haugen was notentitled to "reject" the reprieve. This court should therefore reverse the trialcourt's judgment, and uphold the validity ofthe governor's unconditionalrepneve.


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5ARGUMENT

Based on his concerns about injustices in the capital punishment systemin Oregon, Governor Kitzhaber granted Gary Haugen a temporary reprieve inhis death sentence. Haugen does not wish to be the beneficiary of such areprieve, and thereby filed this declaratory judgment action asking the court todeclare that to be valid, a reprieve must be "accepted" by the person named inthe reprieve. But that is not the law. The power to grant clemency is, and hasalways been, untethered and unfettered by any concomitant requirement that tobe valid, the reprieve must be accepted. 1 That is especially true in the contextof a capital case. Put more simply, Haugen cannot force the state to executehim. Therefore, this court should reverse the trial court's grant of a declaratoryjudgment in favor ofHaugen.

Article V, section 14, ofthe Oregon Constitution vests the governor witha broad power to grant clemency:

He shall have the power to grant reprieves, commutations andpardons, after conviction, for all offences [sic] except treason,subject to such regulations as may be provided by law.

The term "clemency" encompasses reprieves, pardons, andcommutations. As will become evident below, the type of clemency does notaffect the question whether the executive had the power to grant it, except insituations where the clemency-whether a reprieve, pardon, or commutationtook a conditional form.


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6It is axiomatic that any inquiry into the meaning of a constitutional provisionbegins with the methodology set out in Priest v. Pearce, 314 Or 411, 415-16,840 P2d 65 (1992). That methodology requires examination of the specificwording of the provision, prior case law and the historical circumstances of itscreation. I d. "The purpose of that inquiry is to understand the wording [of theconstitutional provision] in the light of the way that the wording would havebeen understood and used by those who created the provision and to apply

faithfully the principles embodied in the Oregon Constitution to modemcircumstances as those circumstances arise." Smothers v. Gresham Transfer,Inc., 332 Or 83, 90-91, 23 P3d 333 (2001) (internal quotation marks andcitations omitted). In this case, text and context, case law, and historydemonstrate that the governor's power to grant an unconditional reprieve is hisor hers alone and relies in no part on the acceptance of the beneficiary.A. Article V, section 14's text requires no acceptance of the reprieve.

As set out above, Article V, section 14, grants the governor the power to"grant reprieves" in all cases except for treason. The provision itself containsno explicit requirement that to be valid, a reprieve must be accepted. Theprovision also makes it plain that the governor is the only one with anyauthority to grant clemency. No mention is made that another person, let alonean inmate, shares or controls that power. Therefore, for plaintiff to be correct,


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7there must be some requirement of acceptance contained within the terms"grant" and/or "reprieve." But there is not.

A mid-nineteenth century law dictionary defines "grant" as "[t]o give; tobestow or confer on without compensation, particularly in answer to prayer orrequest[,]" "[t]o transfer the title of a thing to another, for good or valuableconsideration; to convey by deed or writing." Noah Webster, 1 An AmericanDictionary of he English Language 95 (1828). Jolm Bouvier noted that the

term was "applicable to the conveyance of incorporeal rights, though in thelargest sense, the term comprehends everything that is granted or passed fromone to another, and is applied to every species of property." John Bouvier, 1 ALaw Dictionary Adapted to the Constitution and Laws of he United States ofAmerica 449 (1839). Although often employed with reference to land-saletransactions, according to Lord Coke, the word "may amount to * * * a gift, alease, a release, a confirmation, a surrender, * * * and it is in the election of aparty to use it to which of these purposes he will." Alexander M. Burrill, ANew Law Dictionary and Glossary: Containing Full Definitions of hePrincipal Terms ofthe Common and Civil Law 548 (1850).

Thus, although the term "grant" contemplates in some instances that arecipient of a "grant" will have "prayed" or "requested" that grant, that is notexclusively the case. That is, as the definitions make clear, the term "grant" is abroad one that refers to all forms of gifts, conveyances, or transfers from one


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8person to another. Nothing in the definitions suggest, as Haugen would have it,that the term "grant" embodies only the transfer of something at an individual'srequest and that, absent such a request, there is no "grant." Instead, the termmore broadly implies that any and all transfers, whether requested or not,constitute a "grant."

"Reprieve," in tum, was defined as "To respit [sic] after sentence ofdeath; to suspend or delay the execution of for a time; as, to reprieve a criminal

for thirty days." Noah Webster, 2 An American Dictionary of he EnglishLanguage 56 (1828). Again, the term is a broad one that would have beenunderstood not to require acceptance.

In short, when using the phrase "grant reprieves," the framers would haveunderstood those terms to convey the giving of a suspension in sentence,whether specifically requested or not. Framed another way, neither the term"grant" nor "reprieve" focuses in any degree on how the grant of the reprievemight be viewed by the person receiving it. Plaint iffs contention to thecontrary-that his refusal to accept the reprieve granted mandates itsinvalidity-finds no support in the text. On the contrary, the text demonstratesthat the decision whether a suspension or delay in an execution will occur restssolely in the hands of the governor.

Context also supports that conclusion. In instances where a gubernatorialdecision does not rest solely in the hands of the governor, the framers made as


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9much clear. For instance, in Article V, section 14, the governor's power togrant a reprieve in the case of treason is limited: he or she can suspend theexecution of sentence in case of treason, but the Legislative Assembly mustthen approve (or disapprove) that action at its next meeting. Had the framersintended for a beneficiary of a grant of clemency to have approved (ordisapproved) of the act, it could-and would-have said as much.B. The historical circumstances leading to the enactment of Article V,section 14, demonstrate that an acceptance (or rejection) by the

beneficiary has no bearing on the validity of the clemency.Like the text of Article V, section 14, the historical circumstances leading

to its enactment amply demonstrates that kings, presidents, and governors havelong held the unique (and sweeping) power to grant unconditional clemency,especially where rejecting the clemency would force the executive to execute anindividual.

1. Under English law, the king's clemency power was plenary.The power to grant clemency finds its roots in English law. William F.

Duker, The President's Power to Pardon: A Constitutional History, 18 Wm &Mary L Rev 475, 476 (1977). In England, the king held the power to grantreprieves not by some grant of law, but by virtue of his role as sovereign.Joseph Chitty, A Treatise on the Law of he Prerogatives of he Crown and theRelative Duties and Rights of he Subject 89-90 (1820). Chitty explained thatreprieves historically operated only in capital cases, in contrast to a pardon,


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10which could be granted in any case. Joseph Chitty, 1 A Practical Treatise onthe Criminal Law 522 (1819). A reprieve "signifie[d] the withdrawing of asentence for an interval of time, and operates in delay of execution." !d. Itcould be granted by the king himself, or by a judge who tried the condemnedand who found that circumstances existed that rendered "an immediateexecution inconsistent with humanity of justice." !d. "This temporary mercymay be extended* * * from the mere pleasure of the crown expressed in any

way[.]" !d. Blackstone noted that a reprieve existed to suspend sentence whenthe crown was not satisfied with the verdict or "the evidence is suspicious,"where there "is a mercy dictated by the law of nature," namely, when acondemned inmate was "with child," or when the condemned individual hasbecome insane. William Blackstone, 4 Commentaries on the Laws ofEngland387-88 (1769). In fact, in that latter category, reprieves were mandatory. !d. at389; Chitty, 1 Treatise on the Criminal Law at 523. Blackstone noted anothercategory of cases in which the condemned could "plead in bar of execution"and the king, as an act of grace, could grant the individual clemency.Blackstone, 4 Commentaries at 389.

The crown's clemency power was thus plenary. It was vested in himalone and was unconstrained by any limits, much less a limit that could beinvoked by the condemned by rejecting the crown's reprieve.


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I I

That plenary power became particularly evident when the clemencyinvolved a respite from a death sentence. In that context, commentators havenoted that a felon was not entitled to waive clemency when doing so wouldforce the king to carry out an execution. "If the king pardons a felon, and it isshown to the court; and yet the felon pleads not guilty, and waives the pardon,he shall not be hanged; for it is the king's will that he shall not; and the king hasan interest in the life of his subject." David Jenkins, Eight Centuries ofReports139 (Theodore Barlow trans, 4th ed 1885) (1777). The king's power to grantclemency in the context of a death sentence was thus paramount, and trumpsany attempted waiver of the clemency.

Although the crown's power to grant clemency was generally notconstrained by whether the grantee wished to accept the clemency, that generalprinciple had an exception. Where the form of clemency was expresslyconditioned on the grantee having to fulfill some act, it was assumed that thegrantee had to accept-and fulfill-that condition for the clemency to be valid.For instance, Chitty noted that the king might be inclined to spare anindividuals' life "on condition of transportation to the colonies" and that "thesame act the fulfillment of the condition thus imposed, operates in all respects,like a pardon[.]" Chitty, 1 Treatise on the Criminal Law at 523. In the contextof pardons, Blackstone similarly noted that pardons historically could-andoften were-made conditional. Blackstone, 4 Commentaries at 394. "[T]he


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king may extend his mercy upon what terms he pleases, and may annex to hisbounty a condition either precedent or subsequent, on the performance whereofthe validity of the pardon will depend; and this by the common law." Id2

In short, under English law, the king's powers were broad and absolute-and hinged in no part on the grantee's acceptance-unless the king chose tomake the form of clemency conditioned on the inmate taking some action. Inthose cases, it was generally presumed that the inmate had to accept, and then

fulfill, the condition imposed by the king to take advantage of the clemencygranted.

2. As developed in the United States, the executive's clemencypowers were similarly plenary.

The understanding of clemency that existed in English common lawcarried over to early American colonies. The history ofthe development of theclemency power in America demonstrates that, as in England, to the extent thatthe clemency power was limited, it was not by virtue of a requirement that thegrantee accept the clemency. Instead, the power was restrained only inasmuch

2 The king's power to grant clemency was historically broad, thoughreforms during the 17th and 18th centuries distributed that power between theCrown and Parliament. Under those reforms, the king could not "suspend theoperation of a given law," and "Parliament gained the power to pardon bylegislative act." Daniel T. Kobil, The Quality ofMercy Strained: Wresting thePardoning Power from the King, 69 Tex L. Rev. 569, 589 (1991); Duker, 18Wm & Mary L Rev at 496. But beyond a distribution of power between theking and Parliament, no constraints in the form of needing an individuals'consent or acceptance were contemplated.


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as in some instances, clemency was a power shared between the executive andthe legislature.

The king generally delegated the clemency power to his representative inthe New World, the royal governor. Early colonial charters placed theclemency power in the executive's hand exclusively and, by all accounts, thatpower was as broad as it was under the crown. Kobil, 69 Tex L Rev at 589.However, one of the by-products ofBritish colonial rule was a strong distrust of

concentrated executive power among the former colonies. Thus, in some stateconstitutions crafted during the Revolution, the executive's broad power togrant clemency was tempered by requirements that the clemency power bejointly exercised by the legislature and the executive.3 !d. at 590. Importantly,however, no colony otherwise altered the expansive clemency power as itexisted in England, and no colony appears to have created what would havebeen a novel requirement that clemency must be accepted by the individualrecipient.4

3 It appears that Georgia may be the one exception, where the firststate constitution prohibited the governor to grant pardons. Duker, 18 Wm &Mary L Rev at 500.4 In early America, no mention is made of conditional forms ofclemency and the extent to which a condition necessitated acceptance by thebeneficiary. Presumably, however, given that early American clemency lawfollowed English common law, the idea that conditional forms of clemencyrequired acceptance also carried over.


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At the time of the framing of the federal constitution, and consistent withthe law as it had developed up until that time, the framers did not include anyrequirement that the clemency's validity hinges on the acceptance of therecipient. In fact, the framers bucked the growing trend that that the clemencypower should be held by anyone other than the president. In arguing that thepresident's power should be unlimited, Alexander Hamilton asserted that theclemency power should, in short, exist as it had in England: it "should be as

little fettered as possible" to, among other things, procure accomplicetestimony, to protect spies who have provided useful information to thegovernment, and to quell insurrections by offering clemency to the rebels. I d.at 591. As enacted, the federal constitutional provision limits the sweepingclemency power only in cases of impeachment: the president "shall have thePower to grant Reprieves and Pardons for Offenses against the United States,except in cases ofimpeachment." US Const, Art II, 2, cl 1.

Following the United States Constitution's framing, most of the newstates admitted to the Union followed its suit and vested broad and unfetteredpower in the governor to grant clemency. By the mid-1850's, more than threequarters of the state constitutions that provided for a clemency power vestedthat power in the governor alone. See Christen Jensen, The Pardoning Power inthe American States 11-15 (1922). Those states that imposed structural limitson the governor's authority did so only by requiring that the clemency power be


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15shared with a legislative body. Critically, as states enacted their constitutions,not a single one made mention of restraints on the manner of acceptance-orthe need for any such acceptance.

Thus, at the time that the framers of the Oregon Constitution gathered tocreate the state's constitution, the federal and state legal landscape across thecountry was uniform: as it had been in England, the executive's power to grantclemency, including reprieves, was virtually unrestrained. In those states where

the power was restrained, it was so only by virtue of sharing the power to grantclemency with an advisory board or legislative assembly. Notably absent fromthe historical discussions is any suggestion that the otherwise expansiveclemency powers were constrained by a requirement that for a grant ofclemency to be valid, it had to be accepted by the grantee.

3. As enshrined in Article V, section 14, of the OregonConstitution, the Governor's clemency power was, like thecommon law and United States Constitution, plenary.

Oregon's clemency power mirrors the clemency powers that areenshrined in the state and federal constitutional provisions that existed in 1857.The debate surrounding Article V, section 14, was short, and primarily focusedon whether to pattern the provision after Indiana's constitution, which containeda requirement that a council advise the governor on clemency decisions.Claudia Burton, A Legislative History of he Oregon Constitution of1857-Part II (Articles III-VII), 39 Willamette L Rev 245, 367-68 (2001). One


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legislator moved to strike the clause relating to creation of a council to controlthe governor's actions on the basis that such council were "antiquated and oldfogyish." !d. at 367. He believed that "the responsibility should be imposedupon the governor alone, and that thus the power would be exercised morecarefully, and with better judgment." !d. The motion to strike the advisorycouncil requirement passed 18 to 15. !d. No further debate on the provisionthen occurred. !d. at 368. Article V, section 14, thus enshrines an expansive

clemency power, limited only in instances of treason.C. Caselaw surrounding the executive's clemency power demonstratesthat the power is broad and has never required "acceptance" from

the inmate.The text and history support the conclusion that the power to grant a

reprieve was intrinsically contained within the executive, and that his or herpower to grant a reprieve was unbounded by any limits, much less theacceptance by the grantee. The relevant case law similarly supports thatconclusion, demonstrating that although certain kinds of clemency that containconditions must be accepted by the grantee, courts have unequivocally held thatan inmate does not possess the power to "reject" otherwise unconditional grantsof clemency, particularly where the clemency is a reprieve from a deathsentence.


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1. Caselaw that existed at the time of the framing of Oregon'sConstitution demonstrates that the power to grant clemency isuntethered from any requirement that an unconditional grantof clemency be accepted.

The earliest United States Supreme Court case relating to the clemencypower involved a defendant's attempt to reject a pardon that was issued beforehis conviction. United States v. Wilson, 32 US 150, 8 LEd 640 (1833).Although that case has sometimes been cited as standing for the broaderproposition that clemency must be accepted to be valid, Wilson in fact is a casethat is limited to a pre-conviction pardon. As explained in more detail below,that fact was critical to the outcome in that case.

In Wilson, the defendant was indicted and convicted for mail robbery andputting the life of the mail carrier in jeopardy. Id. at 160. The defendant wasalso indicted for other mail-offense crimes. Before he was convicted, thepresident granted the defendant a pardon with respect to the mail robbery andendangering the mail carrier's life, but not to the other crimes. Id. Thedefendant declined that pardon because it did not extend to the crimes for whichhe was currently standing trial. In determining whether the defendant'sdeclination was material, the Court held that a pardon "is an act of grace," andanalogized the pre-conviction pardon to a deed: a pardon is "a deed, to thevalidity of which, delivery is essential, and delivery is not complete, withoutacceptance. It may then be rejected by the person to whom it is tendered; and if


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it be rejected, we have discovered no power in a court to force it on him." Id. at160-61.5

As explained in more detail below, that language has often been quotedby other courts as standing for the broader proposition that an individual canreject clemency. Yet that simply is not what Wilson pronounced, as a closerexamination of that decision reveals. Wilson relies on early English decisionsand what appears to be a prevailing common law theory that a pardon issued

before a conviction had to be pled "in bar to" a prosecution. Under Englishrules of pleading, "a plea of not guilty [issued before conviction] waived thepardon; and it could not be availed of thereafter in arrest of judgment." RecentCase, 41 Harv L Rev 98, 99 (1927); Chitty, Prerogatives of he Crown at 99;Wilson, 32 US at 162. Stated differently, where the king issued a pardon to theindividual as a private act of grace, and that individual chose not to raise it as a

5 The Court took care to note that the clemency powers as theyexisted in the United States flowed from those ofEngland:As this power had been exercised, from time immemorial, by theexecutive of that nation whose language is our language, and towhose judicial institutions ours bear a close resemblance; we adopttheir principles respecting the operation and effect of a pardon, andlook into their books for the rules prescribing the manner in whichit is to be used by the person who would avail himself of it.

Wilson, 32 US at 160; see also Ex Parte Wells, 59 US 307, 15 LEd 421 (1855)(in recognizing the president's power to grant conditional forms of clemency,the Court noted that the power, as enshrined in the United States, was patternedon the powers as they existed in England).


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bar to his or her prosecution, English courts were not entitled to take judicialnotice of the clemency. See Chitty, Prerogatives of he Crown at 99. Incontrast, no similar limit existed for clemency issued after a conviction. See id.at 98 (explaining that where a judge believes a conviction is unjust, a pardoncan be issued by the king upon the judge's recommendation, whereby thepardon is then sent to the prisoner's jailor); Ratcliffe's Case, Foster 40 (1791)(where the prisoner received a pardon, escaped before conviction, was

convicted, and then attempted to invoke the pardon, the court properly refusedto recognize it).

Thus, rather than standing for the broader proposition that, as a generalmatter, a grant of clemency has to be accepted to be valid, Wilson simply standsfor the proposition that where the pardon is delivered to the individual directlybefore his conviction, a court could not take judicial notice of a private actunless that private act was brought before the court before the court renders its

d. 6ver 1ct.The Court in Wilson also went on to cite Jenkins, infra p 11, for the

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

6 Wilson has even less relevance in the context of clemency grantedunder the Oregon Constitution, where the governor possesses no power to grantclemency before a conviction. See Or Const, Art V, 14 (the Governor has thepower to grant clemency "after conviction").


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20the pardon, he cannot be hanged, "for it is the king's will, that he shall not, andthe king has an interest in the life of his subject." Jd. at 162. Although theCourt seemed unwilling to extend that principle to pre-conviction pardons, werethe felon not to plead the pardon, the Court otherwise approved of the notionthat, once an individual is convicted and then receives a pardon, that individualcannot waive the pardon and force his government to execute him. Id. Asnoted above, that conclusion is consistent with the English law that the Courtwas following.

State court decisions from the period echoed-and in some instancespresaged-the early views of the United States Supreme Court, and neverextended as far as a requirement that clemency be accepted by the beneficiary.For example, many courts recognized, as the United States Supreme Court laterdid in Ex Parte Wells, the power of the executive to attach conditions topardons.7 See, e.g., Flavell's Case, 8 Watts & Serg 197, 1844 WL 5100, at *2(Pa 1844) ("[T]he governor may annex to a pardon any condition whetherprecedent or subsequent not forbidden by law."); see also McDowell v. Couch,

7 There was some disagreement about what a "condition" meant.See Ex parte Lockhart, 3 Ohio Dec Reprint 279 (1855) (requiring a "grantee toperform the condition" or the pardon is void); People v. Potter, 1 Edm Sel Cas235,248 (NY 1846) (characterizing a "pardon[] on condition ofbeingtransported" to another prison as commutation); Flavell's Case, 1844 WL 5100at *2 (a pardon may be valid absent performance of condition subsequent;however, a condition precedent must be performed).


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216 La Ann 365, 1851 WL 3807, at *6 (1851) (stating the same); State v. Fuller, 1McCord 178, 1821 WL 724 (SC 1821) (governor may impose any restriction ona grant of clemency that is possible to perform). And though many state courtsaxiomatically touted the notion that a pardon required acceptance, they did notextend that requirement to other forms of clemency.8 See, e.g., Ex parteLockhart, 3 Ohio Dec Reprint 279 (1855) ("The pardon must be either acceptedor rejected. I f he criminal asks its protection, he must perform its condition.");

see also Fuller, 1821 WL 724 at *2 ("[T]he fulfillment of the condition* * *was prerequisite to the pardon, and that condition having never been performed,the pardon is merely nominal.").

In short, following the common law and the United States Supreme Courtcaselaw, no state court appears to have required that, as a general matter, anunconditional grant of clemency be accepted to be valid. Instead, the case awsurrounding the clemency power reaffirmed that the power was expansive. Theconstraints, to the extent they existed, arose only where the executive granted aconditional clemency or privately delivered the clemency to the individualbefore conviction. But where the grant of clemency is unconditional, there

8 As explained in more detail below, seen 8, the United StatesSupreme Court has also embraced the notion that a pardon requires acceptancebecause, in most instances, a pardon carries with it an acknowledgement ofguilt. That acknowledgement of guilt is akin to a condition attached to thepardon that must be accepted by the beneficiary.


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22appeared to be no limits on the otherwise sweeping power of the executive togrant clemency.

Although decided after the Oregon Constitution was framed, Biddle v.Perovich, 274 US 480,47 S Ct 664,71 LEd 1161 (1927), serves to underscorethose principles. There, President Taft commuted the defendant's sentencefrom death to life imprisonment. Id. at 485. The defendant then filed for a writof habeas corpus on the ground that the commutation was without his consent.Id. The court described the power to grant clemency as a broad constitutionalpower: "It is a part of the Constitutional scheme. When granted it is thedetermination of the ultimate authority that the public welfare will be betterserved by inflicting less than what the judgment fixed." Id. at 486. The Courtexplained that just as the defendant's original sentence of death had beenimposed absent his consent, "the public welfare, not his consent determineswhat shall be done." Id. In short,

When we come to the commutation of death to imprisonment forlife it is hard to see how consent has any more to do with it than ithas in the cases first put. Supposing that [the defendant] did notaccept the change, he could not have got himself hanged againstthe Executive order.


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23!d. at 487. To hold otherwise would be to improperly infringe upon thePresident's power and "permit an execution which he had decided ought not totake place[.]" Id.9

2. Oregon's caselaw, like the United States Supreme Courtcaselaw, has never required acceptance in the face of anunconditional grant of clemency.

Oregon's caselaw has largely tracked the early United States SupremeCourt and state case law. See Wood v. Fitzgerald, 3 Or 568 (1870) (specificallynoting that the legal principles that define the President's clemency authorityunder the federal constitution also apply to the governor's clemency authorityunder Article V, section 14). And just like its state and federal counterparts, no

9 Several years before its decision in Biddle, the Court refused torequire an individual to accede to a pardon where doing so would force anindividual to admit guilt to a crime. Burdick v. United States, 236 US 79, 35 SCt 267, 59 LEd 476 (1915). Burdick, the editor of a newspaper, appearedbefore a grand jury to answer questions related to an on-going investigation. !d.at 85. Burdick refused to answer questions and divulge sources on the groundthat his answers might incriminate him. !d. The president thus issued Burdicka "full and unconditional pardon" for all offenses that he might have committedon the basis that Burdick would then testifY. !d. at 86. Burdick, however,refused to accept the pardon or answer questions about his sources. !d. TheCourt concluded that he was not required to accept the pardon, where doing soimplies that the individual was guilty of an offense. !d. at 91. The Court wentso far as to suggest that an individual might "prefe[r] death even to such certaininfamy" that would accompany acknowledging guilt. !d. Framed differently,the Court appeared to treat the admission of guilt as an implicit condition that,consistent with the treatment of conditional grants of clemency, the grantee wasrequired to accept. In Biddle, the Court refused to extend Burdick. 274 US at488.


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24

Oregon court has held that a beneficiary possesses the power to reject anunconditional reprieve and force the governor to put him to death. There havebeen several cases that suggest that-as in common law and United StatesSupreme Court law-a conditional form of clemency must be accepted. Forinstance, in Ex Parte Houghton, 49 Or 232, 89 P 80 I (1907), the governorcommuted the defendant's sentence on the condition that he would be a "lawabiding citizen." I d. at 232. If the defendant violated that condition, the

commutation provided that the commutation would be revoked. Id. Thedefendant accepted the commutation and was shortly re-arrested. Id. at 233.This court noted that the governor was empowered to grant reprieves,commutations, and pardons "upon such conditions and with such restrictionsand limitations as he [or she] may think proper[.]" Id. at 234. This courtdeclared that the governor had the power to impose the conditions upon thedefendant and that once the defendant had violated the conditions, the governorhad the power to order him re-incarcerated. Jd. at 237. Although not explicitlyrelying on the United States Supreme Court's decision in Wilson, in soconcluding, this court echoed Wilson's statement that the commutation was "anact of grace or favor; and [the defendant] was not obligated to accept it unlesshe so desired." Id. at 235. But that case did not require this court to decide, asit now must, whether the governor can issue an unconditional reprieve in theabsence of acceptance by the beneficiary.


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25The governor similarly granted another defendant a reprieve in Ex Parte

Dormitzer, 119 Or 336, 249 P 639 (1926), but did so conditionally: thedefendant, in exchange for a reprieve, agreed to obey the laws of the land. I d.at 337. When the defendant failed to do so, the governor revoked the reprieve.Id. This court upheld that revocation, noting that the defendant had "acceptedthe favor of the Governor" and had treated his leniency "with the samecontempt that he had treated the law of the state, and must suffer the

consequences." Id. at 340.10 Again, that was not a case in which this court wasrequired to decide whether an individual possesses the power to reject anunconditional reprieve of a death sentence.

Several salient points can be drawn from the foregoing discussion ofthese cases. First, consistent with the early caselaw across the nation, the typeof clemency has largely driven the accompanying analysis whether acceptance

1 Carpenter v. Lord, 88 Or 128, 138, 171 P 577 (1918) was the firstcase to explicitly adopt the United States Supreme Court's statement in Wilsonthat a pardon is a deed and, as such, delivery and acceptance was required.Interestingly, Carpenter involved an extradition warrant and not a form ofclemency granted under Article V, section 14. Fredericks v. Gladden, 211 Or312, 315 P2d 1010 (1957), similarly relied upon that portion of Wilson. Butthat case is even less relevant, given that it did not even involve the clemencypower under Article V, section 14. Instead, it involved the question of goodtime computations under a particular statute. Nothing in the facts ofFredericksrequired the court to consider-much less to resolve-whether it is necessaryfor the inmate who is offered clemency to accept that offer in order for it tobecome effective (e.g., whether a grant of clemency that is unconditional, bothin fact and in law, requires the inmate's acceptance to be effective).


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26is required to support the validity of the clemency. Thus, where the governorgrants clemency and that clemency is conditional, the prevailing rule is that thegrantee must accept the form of clemency before it can be considered valid.But more critically, no case has adopted a requirement that where the executivegrant of clemency is unconditional, an individual possesses the power tooverride that clemency. Framed another way, there is simply no support inOregon's caselaw that the framers of the Oregon Constitution intended to depart

from the common law and adopt the premise that an individual possesses thepower to override the governor's plenary power under Article V, section 14, togrant clemency and force the state to carry out an execution.D. Governor Kitzhaber's reprieve--which is unconditional-is valid,

despite the fact that Haugen purports to reject it.In this case, Governor Kitzhaber granted Haugen an unconditional and

temporary reprieve of his death sentence pursuant to his powers under ArticleV, section 14. That reprieve did not require Haugen to accept or accede to anycondition-it simply temporarily suspended operation of his sentence. In lightof the text, history, and caselaw surrounding that provision, whether Haugenwishes to reject the reprieve is immaterial.

In concluding otherwise, the trial court relied on this court's holdings inCarpenter and Dormitzer, both ofwhich explicitly referenced the United StatesSupreme Court's statement in Wilson that clemency is "an act of grace, and the


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27recipient is not obliged to accept it." (ER 6-8). The trial court's reasoning is,with respect, incorrect. It fails to grapple with the fact that in Wilson, the Courtwas careful to note that the pardon was issued before the conviction, had beenprivately delivered, and had not been presented to the court. It also fails tograpple with the fact that in Wilson, the Court adopted the common law when itnoted that an inmate did not possess the power to force his government toexecute him. To be sure, this court's decisions in Carpenter and Dormitzer

similarly did not grapple with that distinction. But the issue simply was notpresented in either of those cases. That is, the clemency involved in both caseswas issued post-conviction, was conditional, and did not involve a deathsentence. And, as discussed above, where the clemency is conditional, it hasgenerally been accepted that the recipient has the power to reject the clemency.This court thus needed not to have determined, as it must here, whether anunconditional reprieve that suspends a sentence of death must be accepted.

The trial court similarly discounted Burdick on the ground that thedoctrine articulated in that case-that the public welfare, and not anindividual's consent controls-has never been adopted in Oregon. (ER 8). Thecourt noted that after Burdick was decided, this court continued to rely onWilson. (ER 8); see also Fredericks, 211 Or at 323. But again, the trial courtrelies on a case that does not, and indeed cannot, control. As noted above, infran 9, Fredericks did not involve a question of the validity of a reprieve granted


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28under Article V, section 14 but rather good time computations. In fact, thiscourt explicitly noted that it was not deciding a constitutional question. Id. at322.

Despite the trial court's attempts to decide this case under this court'sprecedents, the question presented here is one that has never been addressed bythis court: whether an unconditional and temporary reprieve of a deathsentence must be accepted by the recipient to be valid. Although early Oregon .case law in some instances discusses general principles of clemency, each hasdone so in a starkly different context than the one presented here.

Moreover, this court has never undertaken the Priest v. Pearce analysiswith respect to Article V, section 14. That analysis, as explained above, leadsto a single conclusion: the ostensible rejection of a temporary and unconditionalreprieve is immaterial. Whatever may be the value of limiting the governor'sunqualified authority to grant clemency by allowing an individual to declineconditional clemency, it makes no sense-from either a historical orjurisprudential standpoint-to limit the governor's unqualified constitutionalauthority to grant an unconditional reprieve by allowing the individual not onlyto object to the reprieve but also to insist upon immediate execution of thesentence despite the reprieve. From its roots in English law, it has been clearthat the executive possesses a unique and broad power to determine, in his or


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29her role as leader of a democratic state, that the public's welfare would be betterserved by granting clemency. Where the executive makes that decision, thegrantee does not have the power to reject it. The same holds true of the OregonConstitution. To allow an individual to reject a reprieve and force hisgovernment to carry out an execution would effect what would be a radicaltransformation of the clemency power as it has existed since its inception.Absent an intention to do so, this court should decline to do that.

AMJ:mlk/3802782

Respectfully submitted,ELLEN F. ROSENBLUMAttorney GeneralANNA M. JOYCESolicitor General

Is/ Anna M. JoyceANNA M. JOYCE #013112Solicitor [email protected] for Defendant-AppellantJohn Kitzhaber, Governor of the State ofOregon


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NOTICE OF FILING AND PROOF OF SERVICEI certify that on December 21, 2012, I directed the original Brief on the

Merits ofAppellant, John Kitzhaber, Governor ofthe State ofOregon to beelectronically filed with the Appellate Court Administrator, Appellate RecordsSection, and electronically served upon Harrison Latto, attorney for respondent,by using the court's electronic filing system.

CERTIFICATE OF COMPLIANCE WITH ORAP 5.05(2)(d)I certify that (1) this brief complies with the word-count limitation in

ORAP 5.05(2)(b) and (2) the word-count ofthis brief(as described in ORAP5.05(2)(a)) is 7,233 words. I further certify that the size of the type in this briefis not smaller than 14 point for both the text of the brief and footnotes asrequired by ORAP 5.05(2)(b).

Al\1J:mlk/3802782

/s/ Anna M. JoyceANNAM. JOYCE #013112Solicitor [email protected] for Defendant-Appellant

Documents

Brief on behalf of Gov. Kitzhaber