! .

FILED

December 21, 2012 01 :28 PM

Appellate Court Records

IN THE SUPREME COURT OF THE STATE OF OREGON

GARY D. HAUGEN, Plaintiff..Respondent, v.

Marion County Circuit Court No. 12C16560

CA Al52412

JOHN KITZHABER, Governor of the I SC S060761 State of Oregon, Defendant-Appellant.

BRJEF ON THE MERITS OF APPELLANT, JOHN KITZHABER, GOVERNOR OF THE STATE OF OREGON

Cetiified Appeal of the Judgment of the Circuit Court for Marion County Honorable Tll\10THY ALEXANDER, Judge

HARRISON LATTO #812890 Attorney at Law 1631 N.E. Broadway No. 533 Portland, OR 97232 Telephone: (503) 223-0783 Email: hlatto@easystreet.net Attorney for Plaintiff-Respondent

ELLEN F. ROSENBLUM #753239 Attorney General ANNA M. JOYCE #013112 Solicitor General JAKE J. HOGUE # 123459 Assistant Attorney General 1162 Court St. NE Salem, Oregon 97301-4096 Telephone: (503) 378-4402 Email: anna.joyce@doj .state.or.us Attorneys for Defendant-Appellant

12/12

TABLE OF CONTENTS

STATEMENT OF THE CASE ............................................................................ ! Question Presented ..................................................................................... 2 Proposed Rule of Law ................................................................................ 2 Statement of Facts ...................................................................................... 2 Summary of Argument ............................................................................... 3 ARGUMENT ........................................................................................................ 5
A.

Article V, section 14's text requires no acceptance of the reprieve ............................................................................................. 6 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 ................................................................................ 9 1. 2. 3. Under English law, the king's clemency power was plenary ................................................................................... 9 As developed in the United States, the executive's clemency powers were similarly plenary ............................ 12 As enshrined in Article V, section 14, of the Oregon Constitution, the Governor's clemency power was, like the common law and United States Constitution, plenary ................................................................................. 15

B.

C.

Caselaw surrounding the executive's clemency power demonstrates that the power is broad and has never required "acceptance" from the inmate ........................................................ 16 1. Caselaw that existed at the time of the framing of Oregon's Constitution demonstrates that the power to grant clemency is untethered from any requirement that an unconditional grant of clemency be accepted .......... 17 Oregon's caselaw, like the United States Supreme Court caselaw, has never required acceptance in the face of an unconditional grant of clemency ........................ 23

2.

D.

Governor Kitzhaber's reprieve-which is unconditional-is valid, despite the fact that Haugen purports to reject it. ................ 26

EXCERPT OF RECORD

TABLE OF AUTHORITIES Cases Cited

Biddle v. Perovich, 274 US 480, 47 S Ct 664, 71 LEd 1161 (1927) ................................ 22, 23 Burdick 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, 26,27 Ex Parte Dormitzer, 119 Or 336, 249 P 639 (1926) ............................................................ 25, 27 Ex Parte Houghton, 49 Or 232, 89 P 801 (1907) ...................................................................... 24 Ex parte Lockhart, 3 Ohio Dec Reprint 279 (1855) .......................................................... 20, 21 Ex Parte Wells, 59 US 307, 15 LEd 421 (1855) ............................................................... 18 Flavell's Case, 8 Watts & Serg 197, 1844 WL 5100 (Pa 1844) ....................................... 20 Fredericks v. Gladden, 211 Or 312,315 P2d 1010 (1957) ...................................................... 25, 27 McDowell v. Couch, 6 La Ann 365, 1851 WL 3807 (1851) ...................................................... 21 People v. Potter, 1 Edm Sel Cas 235 (NY 1846) ................................................................. 20 Priest v. Pearce, 314 Or 411, 840 P2d 65 ( 1992) ............................................................ 6, 28 Ratcliffe's Case, Foster 40 ( 1791) ....................................................................................... 19 Smothers v. Gresham Transfer, Inc., 332 Or 83, 23 P3d 333 (2001) .................................................................... 6 State v. Fuller, 1 McCord 178, 1821 WL 724 (SC 1821) ................................................. 21 United States v. Wilson,
11

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

Wood v. Fitzgerald, 3 Or 568 (1870) ........................................................................................ 23

Constitutional and Statutory Provisions

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

Other Authorities
Alexander M. Burrill, A New Law Dictionary and Glossary: Containing Full Definitions of the Principal Terms of the Common and Civil Law 548 (1850) ............ 7 Christen Jensen, The Pardoning Power in the American States 11-15 (1922) ................... 14 Claudia Burton, A Legislative History of the Oregon Constitution of 1857- Part II (Articles III- VII), 39 Willamette L Rev 245 (2001) ................................. 15 Daniel T. Kobil, The Quality of Mercy Strained: Wresting the Pardoning Power from the King, 69 Tex L. Rev. 569 (1991) ......................................... 12, 13 David Jenkins, Eight Centuries of Reports 139 (Theodore Barlow trans, 4th ed 1885) ( l 777) .......................................... 11 John Bouvier, 1 A Law Dictionary Adapted to the Constitution and Laws of the United States ofAmerica 449 (1839) ................................................... 7 Joseph Chitty, 1 A Practical Treatise on the Criminal Law 522 (1819) ................... ! 0, 11 Joseph Chitty, A Treatise on the Law of the Prerogatives of the Crown and the Relative Duties and Rights of the Subject 89-90 (1820) .......... 9, 18, 19 Noah Webster, 2 An American Dictionary of the English Language 56 (1828) ................ 8 Noah Webster, 1 An American Dictionary of the English Language 95 (1828) ................ 7 Recent Case,
111

41 HarvLRev98(1927) ......................................................................... 18 William Blackstone, 4 Commentaries on the Laws ofEngland 387-88 (1769) .................. 10, 11 William F. Duker, The President's Power to Pardon: A Constitutional History, 18 Wm&MaryLRev475 (1977) ................................................. 9, 12,13

iv

BRIEF ON THE MERITS OF APPELLANT, JOHN KITZHABER, GOVERNOR OF THE STATE OF OREGON

STATEMENT OF THE CASE Kings, presidents, and governors have long possessed the power to grant individuals clemency in the form of a reprieve, thereby temporarily suspending or delaying an inmate's sentence. The power is one that, from its English origins, has been exercised for any number of reasons: as an act of grace, to ensure that justice was properly administered, or to recruit individuals into the armed forces. Although the reasons for granting clemency have been shaped by history, politics, or personal favor, the underlying power to grant clemency has been 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 been emphatic in concluding that no individual can force its government to carry out an execution in the face of an executive reprieve. In Oregon, the power of the governor to grant clemency was memorialized in Article V, section 14. The question here is narrow yet of first impression: whether, when the governor exercises his authority under Article V, section 14, to grant a temporary and unconditional reprieve to a death-row inmate, that reprieve is only valid and effective upon acceptance by the inmate.

Consistent with hundreds of years of common law, the answer to that question is plainly no. An inmate simply possesses no power to reject an unconditional reprieve and force his government to execute him.

Question Presented
Article V, section 14, grants the governor broad power "to grant reprieves, commutations and pardons, after conviction, for all offences [sic] except treason[.]" Under that provision, is the granting of an unconditional reprieve 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 unconditional reprieve 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 convicted of aggravated murder in 2007. He received a sentence of death. (ER 3). After this court upheld his conviction and sentence, Haugen decided to forgo any further appeals. (ER 3). The trial court issued a death warrant, and set an execution date of December 6, 2011. (ER 3). Before that date, Governor Kitzhaber 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

rejected and declined the reprieve and demanded that the sentence of death be carried out." (ER 3 ). Haugen thus brought this declaratory judgment action. He sought a judgment declaring that Governor Kitzhaber's reprieve was "invalid and ineffective" and directing the court proceed with the execution. (ER 16). Haugen moved for judgment on the pleadings, a motion that the trial court granted. The trial court, relying on several United States and Oregon Supreme Court opinions, concluded that Haugen "has a right to reject the Governor's reprieve." (ER 8). Because Haugen had that right, the court declared Governor Kitzhaber's reprieve "ineffective." (ER 8).
Summary of Argument

Governor Kitzhaber issued an unconditional temporary reprieve to Gary Haugen pursuant to his power under Article V, section 14. Haugen purported to reject that reprieve. The trial court concluded that Haugen's rejection controlled; that is, that the governor's reprieve was invalid because Haugen did not accept it. But that ruling cannot stand in light of the governor's broad and plenary 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 the provision demonstrate that the governor's power is plenary. From its English roots, the power to grant clemency has been untethered from any requirement

that to be valid, the clemency must be accepted by the beneficiary. That held particularly true where rejecting the grant of clemency would force the beneficiary's government to execute him: from its earliest mentions in English law, it has been clear that an individual possesses no power to force his government to carry out a sentence of death. The framers of the United States Constitution enshrined that common-law concept of the clemency power in the United 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 as leader of a democratic state, that clemency is appropriate, and the beneficiary has no power to reject it. The same, of course, cannot be said of grants of clemency that are premised on the inmate fulfilling some condition. In those cases, it has long been 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 untethered from any condition that requires acceptance from the inmate. Because the governor's power under Article V, section 14 to grant an unconditional reprieve of a death sentence is unfettered, Haugen was not entitled to "reject" the reprieve. This court should therefore reverse the trial court's judgment, and uphold the validity ofthe governor's unconditional repneve.

ARGUMENT

Based on his concerns about injustices in the capital punishment system in Oregon, Governor Kitzhaber granted Gary Haugen a temporary reprieve in his death sentence. Haugen does not wish to be the beneficiary of such a reprieve, and thereby filed this declaratory judgment action asking the court to declare that to be valid, a reprieve must be "accepted" by the person named in the reprieve. But that is not the law. The power to grant clemency is, and has always been, untethered and unfettered by any concomitant requirement that to be valid, the reprieve must be accepted. 1 That is especially true in the context of a capital case. Put more simply, Haugen cannot force the state to execute him. Therefore, this court should reverse the trial court's grant of a declaratory judgment in favor of Haugen. Article V, section 14, ofthe Oregon Constitution vests the governor with a broad power to grant clemency: He shall have the 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.

The term "clemency" encompasses reprieves, pardons, and commutations. As will become evident below, the type of clemency does not affect the question whether the executive had the power to grant it, except in situations where the clemency-whether a reprieve, pardon, or commutationtook a conditional form.

It is axiomatic that any inquiry into the meaning of a constitutional provision

begins with the methodology set out in Priest v. Pearce, 314 Or 411, 415-16, 840 P2d 65 (1992). That methodology requires examination of the specific wording of the provision, prior case law and the historical circumstances of its creation. I d. "The purpose of that inquiry is to understand the wording [of the constitutional provision] in the light of the way that the wording would have been understood and used by those who created the provision and to apply faithfully the principles embodied in the Oregon Constitution to modem circumstances as those circumstances arise." Smothers v. Gresham Transfer,

Inc., 332 Or 83, 90-91, 23 P3d 333 (2001) (internal quotation marks and
citations omitted). In this case, text and context, case law, and history demonstrate that the governor's power to grant an unconditional reprieve is his or 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 contains no explicit requirement that to be valid, a reprieve must be accepted. The provision also makes it plain that the governor is the only one with any authority to grant clemency. No mention is made that another person, let alone an inmate, shares or controls that power. Therefore, for plaintiff to be correct,

7 there 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; to bestow or confer on without compensation, particularly in answer to prayer or request[,]" "[t]o transfer the title of a thing to another, for good or valuable consideration; to convey by deed or writing." Noah Webster, 1 An American Dictionary of the English Language 95 (1828). Jolm Bouvier noted that the term was "applicable to the conveyance of incorporeal rights, though in the largest sense, the term comprehends everything that is granted or passed from one to another, and is applied to every species of property." John Bouvier, 1 A Law Dictionary Adapted to the Constitution and Laws of the United States of America 449 (1839). Although often employed with reference to land-sale transactions, according to Lord Coke, the word "may amount to lease, a release, a confirmation, a surrender,

* * * a gift, a

* * * and it is in the election of a

party to use it to which of these purposes he will." Alexander M. Burrill, A New Law Dictionary and Glossary: Containing Full Definitions of the Principal Terms ofthe Common and Civil Law 548 (1850). Thus, although the term "grant" contemplates in some instances that a recipient of a "grant" will have "prayed" or "requested" that grant, that is not exclusively the case. That is, as the definitions make clear, the term "grant" is a broad one that refers to all forms of gifts, conveyances, or transfers from one

person 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's request and that, absent such a request, there is no "grant." Instead, the term more 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 of death; 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 the English
Language 56 (1828). Again, the term is a broad one that would have been

understood not to require acceptance. In short, when using the phrase "grant reprieves," the framers would have understood 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 reprieve might be viewed by the person receiving it. Plaintiffs contention to the contrary-that his refusal to accept the reprieve granted mandates its invalidity-finds no support in the text. On the contrary, the text demonstrates that the decision whether a suspension or delay in an execution will occur rests solely in the hands of the governor. Context also supports that conclusion. In instances where a gubernatorial decision does not rest solely in the hands of the governor, the framers made as

much clear. For instance, in Article V, section 14, the governor's power to grant a reprieve in the case of treason is limited: he or she can suspend the execution of sentence in case of treason, but the Legislative Assembly must then approve (or disapprove) that action at its next meeting. Had the framers intended for a beneficiary of a grant of clemency to have approved (or disapproved) 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 have long held the unique (and sweeping) power to grant unconditional clemency, especially where rejecting the clemency would force the executive to execute an individual.
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 grant reprieves not by some grant of law, but by virtue of his role as sovereign. Joseph Chitty, A Treatise on the Law of the Prerogatives of the Crown and the

Relative Duties and Rights of the Subject 89-90 (1820). Chitty explained that
reprieves historically operated only in capital cases, in contrast to a pardon,

10

which could be granted in any case. Joseph Chitty, 1 A Practical Treatise on

the Criminal Law 522 (1819). A reprieve "signifie[d] the withdrawing of a

sentence for an interval of time, and operates in delay of execution." !d. It could be granted by the king himself, or by a judge who tried the condemned and who found that circumstances existed that rendered "an immediate execution inconsistent with humanity of justice." !d. "This temporary mercy may be extended* * * from the mere pleasure of the crown expressed in any way[.]" !d. Blackstone noted that a reprieve existed to suspend sentence when the 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 a condemned inmate was "with child," or when the condemned individual has become insane. William Blackstone, 4 Commentaries on the Laws of England 387-88 (1769). In fact, in that latter category, reprieves were mandatory. !d. at 389; Chitty, 1 Treatise on the Criminal Law at 523. Blackstone noted another category 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 him alone and was unconstrained by any limits, much less a limit that could be invoked by the condemned by rejecting the crown's reprieve.

II

That plenary power became particularly evident when the clemency involved a respite from a death sentence. In that context, commentators have noted that a felon was not entitled to waive clemency when doing so would force the king to carry out an execution. "If the king pardons a felon, and it is shown 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 has an interest in the life of his subject." David Jenkins, Eight Centuries of Reports 139 (Theodore Barlow trans, 4th ed 1885) (1777). The king's power to grant clemency in the context of a death sentence was thus paramount, and trumps any attempted waiver of the clemency. Although the crown's power to grant clemency was generally not constrained by whether the grantee wished to accept the clemency, that general principle had an exception. Where the form of clemency was expressly conditioned on the grantee having to fulfill some act, it was assumed that the grantee 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 an individuals' life "on condition of transportation to the colonies" and that "the same 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 context of pardons, Blackstone similarly noted that pardons historically could-and often were-made conditional. Blackstone, 4 Commentaries at 394. "[T]he

12

king may extend his mercy upon what terms he pleases, and may annex to his bounty a condition either precedent or subsequent, on the performance whereof the 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 absoluteand hinged in no part on the grantee's acceptance-unless the king chose to make the form of clemency conditioned on the inmate taking some action. In those 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 clemency granted.
2. As developed in the United States, the executive's clemency powers were similarly plenary.

The understanding of clemency that existed in English common law carried over to early American colonies. The history ofthe development of the clemency power in America demonstrates that, as in England, to the extent that the clemency power was limited, it was not by virtue of a requirement that the grantee accept the clemency. Instead, the power was restrained only inasmuch The king's power to grant clemency was historically broad, though reforms during the 17th and 18th centuries distributed that power between the Crown and Parliament. Under those reforms, the king could not "suspend the operation of a given law," and "Parliament gained the power to pardon by legislative act." Daniel T. Kobil, The Quality of Mercy Strained: Wresting the Pardoning Power from the King, 69 Tex L. Rev. 569, 589 (1991); Duker, 18 Wm & Mary L Rev at 496. But beyond a distribution of power between the king and Parliament, no constraints in the form of needing an individuals' consent or acceptance were contemplated.
2

13

as in some instances, clemency was a power shared between the executive and the legislature. The king generally delegated the clemency power to his representative in the New World, the royal governor. Early colonial charters placed the clemency power in the executive's hand exclusively and, by all accounts, that power was as broad as it was under the crown. Kobil, 69 Tex L Rev at 589. However, one of the by-products of British colonial rule was a strong distrust of concentrated executive power among the former colonies. Thus, in some state constitutions crafted during the Revolution, the executive's broad power to grant clemency was tempered by requirements that the clemency power be jointly exercised by the legislature and the executive. 3 !d. at 590. Importantly, however, no colony otherwise altered the expansive clemency power as it existed in England, and no colony appears to have created what would have been a novel requirement that clemency must be accepted by the individual recipient. 4
3

It appears that Georgia may be the one exception, where the first state constitution prohibited the governor to grant pardons. Duker, 18 Wm &

Mary L Rev at 500. In early America, no mention is made of conditional forms of clemency and the extent to which a condition necessitated acceptance by the beneficiary. Presumably, however, given that early American clemency law followed English common law, the idea that conditional forms of clemency required acceptance also carried over.
4

14

At the time of the framing of the federal constitution, and consistent with the law as it had developed up until that time, the framers did not include any requirement that the clemency's validity hinges on the acceptance of the recipient. In fact, the framers bucked the growing trend that that the clemency power should be held by anyone other than the president. In arguing that the president's power should be unlimited, Alexander Hamilton asserted that the clemency power should, in short, exist as it had in England: it "should be as little fettered as possible" to, among other things, procure accomplice testimony, to protect spies who have provided useful information to the government, and to quell insurrections by offering clemency to the rebels. I d. at 591. As enacted, the federal constitutional provision limits the sweeping clemency power only in cases of impeachment: the president "shall have the Power 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 new states admitted to the Union followed its suit and vested broad and unfettered power in the governor to grant clemency. By the mid-1850's, more than threequarters of the state constitutions that provided for a clemency power vested that power in the governor alone. See Christen Jensen, The Pardoning Power in
the American States 11-15 (1922). Those states that imposed structural limits

on the governor's authority did so only by requiring that the clemency power be

15

shared with a legislative body. Critically, as states enacted their constitutions, not a single one made mention of restraints on the manner of acceptance-or the need for any such acceptance. Thus, at the time that the framers of the Oregon Constitution gathered to create the state's constitution, the federal and state legal landscape across the country was uniform: as it had been in England, the executive's power to grant clemency, including reprieves, was virtually unrestrained. In those states where the power was restrained, it was so only by virtue of sharing the power to grant clemency with an advisory board or legislative assembly. Notably absent from the historical discussions is any suggestion that the otherwise expansive clemency powers were constrained by a requirement that for a grant of clemency to be valid, it had to be accepted by the grantee.

3.

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

Oregon's clemency power mirrors the clemency powers that are enshrined in the state and federal constitutional provisions that existed in 1857. The debate surrounding Article V, section 14, was short, and primarily focused on whether to pattern the provision after Indiana's constitution, which contained a requirement that a council advise the governor on clemency decisions. Claudia Burton, A Legislative History of the Oregon Constitution of 1857-

Part II (Articles III-VII), 39 Willamette L Rev 245, 367-68 (2001). One

16

legislator moved to strike the clause relating to creation of a council to control the governor's actions on the basis that such council were "antiquated and old fogyish." !d. at 367. He believed that "the responsibility should be imposed upon the governor alone, and that thus the power would be exercised more carefully, and with better judgment." !d. The motion to strike the advisory council requirement passed 18 to 15. !d. No further debate on the provision then 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 demonstrates that 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 her power to grant a reprieve was unbounded by any limits, much less the acceptance by the grantee. The relevant case law similarly supports that conclusion, demonstrating that although certain kinds of clemency that contain conditions must be accepted by the grantee, courts have unequivocally held that an inmate does not possess the power to "reject" otherwise unconditional grants of clemency, particularly where the clemency is a reprieve from a death sentence.

17

1.

Caselaw that existed at the time of the framing of Oregon's Constitution demonstrates that the power to grant clemency is untethered from any requirement that an unconditional grant of clemency be accepted.

The earliest United States Supreme Court case relating to the clemency power involved a defendant's attempt to reject a pardon that was issued before his conviction. United States v. Wilson, 32 US 150, 8 LEd 640 (1833). Although that case has sometimes been cited as standing for the broader proposition that clemency must be accepted to be valid, Wilson in fact is a case that 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 and putting the life of the mail carrier in jeopardy. Id. at 160. The defendant was also indicted for other mail-offense crimes. Before he was convicted, the president granted the defendant a pardon with respect to the mail robbery and endangering the mail carrier's life, but not to the other crimes. Id. The defendant declined that pardon because it did not extend to the crimes for which he was currently standing trial. In determining whether the defendant's declination was material, the Court held that a pardon "is an act of grace," and analogized the pre-conviction pardon to a deed: a pardon is "a deed, to the validity of which, delivery is essential, and delivery is not complete, without acceptance. It may then be rejected by the person to whom it is tendered; and if

18 it be rejected, we have discovered no power in a court to force it on him." Id. at 160-61. 5 As explained in more detail below, that language has often been quoted by other courts as standing for the broader proposition that an individual can reject clemency. Yet that simply is not what Wilson pronounced, as a closer examination of that decision reveals. Wilson relies on early English decisions and 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 English
rules of pleading, "a plea of not guilty [issued before conviction] waived the pardon; and it could not be availed of thereafter in arrest of judgment." Recent Case, 41 Harv L Rev 98, 99 (1927); Chitty, Prerogatives of the Crown at 99;

Wilson, 32 US at 162. Stated differently, where the king issued a pardon to the
individual as a private act of grace, and that individual chose not to raise it as a The Court took care to note that the clemency powers as they existed in the United States flowed from those of England: As this power had been exercised, from time immemorial, by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance; we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it.
5

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 patterned on the powers as they existed in England).

19

bar to his or her prosecution, English courts were not entitled to take judicial notice of the clemency. See Chitty, Prerogatives of the Crown at 99. In contrast, 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 pardon can be issued by the king upon the judge's recommendation, whereby the pardon 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 refused to recognize it). Thus, rather than standing for the broader proposition that, as a general matter, a grant of clemency has to be accepted to be valid, Wilson 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 a private act unless that private act was brought before the court before the court renders its verd1ct.
.
6

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

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

20

the pardon, he cannot be hanged, "for it is the king's will, that he shall not, and the king has an interest in the life of his subject." Jd. at 162. Although the Court seemed unwilling to extend that principle to pre-conviction pardons, were the felon not to plead the pardon, the Court otherwise approved of the notion that, once an individual is convicted and then receives a pardon, that individual cannot waive the pardon and force his government to execute him. I d. As noted above, that conclusion is consistent with the English law that the Court was following. State court decisions from the period echoed-and in some instances presaged-the early views of the United States Supreme Court, and never extended as far as a requirement that clemency be accepted by the beneficiary. For example, many courts recognized, as the United States Supreme Court later did in Ex Parte Wells, the power of the executive to attach conditions to pardons. 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 whether precedent or subsequent not forbidden by law."); see also McDowell v. Couch, There was some disagreement about what a "condition" meant. See Ex parte Lockhart, 3 Ohio Dec Reprint 279 (1855) (requiring a "grantee to perform the condition" or the pardon is void); People v. Potter, 1 Edm Sel Cas 235,248 (NY 1846) (characterizing a "pardon[] on condition ofbeing transported" to another prison as commutation); Flavell's Case, 1844 WL 5100 at *2 (a pardon may be valid absent performance of condition subsequent; however, a condition precedent must be performed).
7

21

6 La Ann 365, 1851 WL 3807, at *6 (1851) (stating the same); State v. Fuller, 1 McCord 178, 1821 WL 724 (SC 1821) (governor may impose any restriction on a grant of clemency that is possible to perform). And though many state courts axiomatically touted the notion that a pardon required acceptance, they did not extend that requirement to other forms of clemency. 8 See, e.g., Ex parte

Lockhart, 3 Ohio Dec Reprint 279 (1855) ("The pardon must be either accepted
or rejected. If the 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 Court caselaw, no state court appears to have required that, as a general matter, an unconditional grant of clemency be accepted to be valid. Instead, the case law surrounding the clemency power reaffirmed that the power was expansive. The constraints, to the extent they existed, arose only where the executive granted a conditional clemency or privately delivered the clemency to the individual before conviction. But where the grant of clemency is unconditional, there As explained in more detail below, seen 8, the United States Supreme Court has also embraced the notion that a pardon requires acceptance because, in most instances, a pardon carries with it an acknowledgement of guilt. That acknowledgement of guilt is akin to a condition attached to the pardon that must be accepted by the beneficiary.
8

22 appeared to be no limits on the otherwise sweeping power of the executive to grant 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 underscore

those principles. There, President Taft commuted the defendant's sentence from death to life imprisonment. Id. at 485. The defendant then filed for a writ of habeas corpus on the ground that the commutation was without his consent.

I d. The court described the power to grant clemency as a broad constitutional

power: "It is a part of the Constitutional scheme. 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." Id. at 486. The Court explained that just as the defendant's original sentence of death had been imposed absent his consent, "the public welfare, not his consent determines what shall be done." Id. In short, When we come to the commutation of death to imprisonment for life it is hard to see how consent has any more to do with it than it has in the cases first put. Supposing that [the defendant] did not accept the change, he could not have got himself hanged against the Executive order.

23
!d. at 487. To hold otherwise would be to improperly infringe upon the

President's power and "permit an execution which he had decided ought not to take place[.]" Id. 9 2. Oregon's caselaw, like the United States Supreme Court caselaw, has never required acceptance in the face of an unconditional grant of clemency.

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

Several years before its decision in Biddle, the Court refused to require an individual to accede to a pardon where doing so would force an individual to admit guilt to a crime. Burdick v. United States, 236 US 79, 35 S Ct 267, 59 LEd 476 (1915). Burdick, the editor of a newspaper, appeared before 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 ground that his answers might incriminate him. !d. The president thus issued Burdick a "full and unconditional pardon" for all offenses that he might have committed on the basis that Burdick would then testifY. !d. at 86. Burdick, however, refused to accept the pardon or answer questions about his sources. !d. The Court concluded that he was not required to accept the pardon, where doing so implies that the individual was guilty of an offense. !d. at 91. The Court went so far as to suggest that an individual might "prefe[r] death even to such certain infamy" 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 was required to accept. In Biddle, the Court refused to extend Burdick. 274 US at 488.

24 Oregon court has held that a beneficiary possesses the power to reject an unconditional reprieve and force the governor to put him to death. There have been several cases that suggest that-as in common law and United States Supreme Court law-a conditional form of clemency must be accepted. For instance, in Ex Parte Houghton, 49 Or 232, 89 P 80 I (1907), the governor commuted 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. I d. The defendant 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 restrictions and limitations as he [or she] may think proper[.]" I d. at 234. This court declared that the governor had the power to impose the conditions upon the defendant and that once the defendant had violated the conditions, the governor had the power to order him re-incarcerated. Jd. at 237. Although not explicitly relying on the United States Supreme Court's decision in Wilson, in so concluding, this court echoed Wilson's statement that the commutation was "an act of grace or favor; and [the defendant] was not obligated to accept it unless he so desired." I d. at 235. But that case did not require this court to decide, as it now must, whether the governor can issue an unconditional reprieve in the absence of acceptance by the beneficiary.

25

The governor similarly granted another defendant a reprieve in Ex Parte

Dormitzer, 119 Or 336, 249 P 639 (1926), but did so conditionally: the
defendant, 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.
I d. This court upheld that revocation, noting that the defendant had "accepted

the favor of the Governor" and had treated his leniency "with the same contempt 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 was required to decide whether an individual possesses the power to reject an unconditional reprieve of a death sentence. Several salient points can be drawn from the foregoing discussion of these cases. First, consistent with the early caselaw across the nation, the type of clemency has largely driven the accompanying analysis whether acceptance

Carpenter v. Lord, 88 Or 128, 138, 171 P 577 (1918) was the first case to explicitly adopt the United States Supreme Court's statement in Wilson that a pardon is a deed and, as such, delivery and acceptance was required. Interestingly, Carpenter involved an extradition warrant and not a form of clemency granted under Article V, section 14. Fredericks v. Gladden, 211 Or 312, 315 P2d 1010 (1957), similarly relied upon that portion of Wilson. But that case is even less relevant, given that it did not even involve the clemency power under Article V, section 14. Instead, it involved the question of good time computations under a particular statute. Nothing in the facts of Fredericks required the court to consider-much less to resolve-whether it is necessary for the inmate who is offered clemency to accept that offer in order for it to become effective (e.g., whether a grant of clemency that is unconditional, both in fact and in law, requires the inmate's acceptance to be effective).

26

is required to support the validity of the clemency. Thus, where the governor grants clemency and that clemency is conditional, the prevailing rule is that the grantee must accept the form of clemency before it can be considered valid. But more critically, no case has adopted a requirement that where the executive grant of clemency is unconditional, an individual possesses the power to override that clemency. Framed another way, there is simply no support in Oregon's caselaw that the framers of the Oregon Constitution intended to depart from the common law and adopt the premise that an individual possesses the power to override the governor's plenary power under Article V, section 14, to grant 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 Article V, section 14. That reprieve did not require Haugen to accept or accede to any condition-it simply temporarily suspended operation of his sentence. In light of the text, history, and caselaw surrounding that provision, whether Haugen wishes to reject the reprieve is immaterial. In concluding otherwise, the trial court relied on this court's holdings in

Carpenter and Dormitzer, both of which explicitly referenced the United States
Supreme Court's statement in Wilson that clemency is "an act of grace, and the

27
recipient 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 Court was careful to note that the pardon was issued before the conviction, had been privately delivered, and had not been presented to the court. It also fails to grapple with the fact that in Wilson, the Court adopted the common law when it noted that an inmate did not possess the power to force his government to execute him. To be sure, this court's decisions in Carpenter and Dormitzer similarly did not grapple with that distinction. But the issue simply was not presented in either of those cases. That is, the clemency involved in both cases was issued post-conviction, was conditional, and did not involve a death sentence. And, as discussed above, where the clemency is conditional, it has generally 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 an unconditional reprieve that suspends a sentence of death must be accepted. The trial court similarly discounted Burdick on the ground that the doctrine articulated in that case-that the public welfare, and not an individual's consent controls-has never been adopted in Oregon. (ER 8). The court noted that after Burdick was decided, this court continued to rely on
Wilson. (ER 8); see also Fredericks, 211 Or at 323. But again, the trial court

relies on a case that does not, and indeed cannot, control. As noted above, infra n 9, Fredericks did not involve a question of the validity of a reprieve granted

28

under Article V, section 14 but rather good time computations. In fact, this court explicitly noted that it was not deciding a constitutional question. Id. at 322. Despite the trial court's attempts to decide this case under this court's precedents, the question presented here is one that has never been addressed by this court: whether an unconditional and temporary reprieve of a death sentence must be accepted by the recipient to be valid. Although early Oregon . case law in some instances discusses general principles of clemency, each has done so in a starkly different context than the one presented here. Moreover, this court has never undertaken the Priest v. Pearce analysis with respect to Article V, section 14. That analysis, as explained above, leads to a single conclusion: the ostensible rejection of a temporary and unconditional reprieve is immaterial. Whatever may be the value of limiting the governor's unqualified authority to grant clemency by allowing an individual to decline

conditional clemency, it makes no sense-from either a historical or

jurisprudential standpoint-to limit the governor's unqualified constitutional authority to grant an unconditional reprieve by allowing the individual not only to object to the reprieve but also to insist upon immediate execution of the sentence despite the reprieve. From its roots in English law, it has been clear that the executive possesses a unique and broad power to determine, in his or

29

her role as leader of a democratic state, that the public's welfare would be better served by granting clemency. Where the executive makes that decision, the grantee does not have the power to reject it. The same holds true of the Oregon Constitution. To allow an individual to reject a reprieve and force his government to carry out an execution would effect what would be a radical transformation of the clemency power as it has existed since its inception. Absent an intention to do so, this court should decline to do that. Respectfully submitted, ELLEN F. ROSENBLUM Attorney General ANNA M. JOYCE Solicitor General

Is/ Anna M. Joyce ANNA M. JOYCE #013112 Solicitor General anna.joyce@doj.state.or.us

Attorneys for Defendant-Appellant John Kitzhaber, Governor of the State of Oregon
AMJ:mlk/3802782

NOTICE OF FILING AND PROOF OF SERVICE

I certify that on December 21, 2012, I directed the original Brief on the Merits of Appellant, John Kitzhaber, Governor ofthe State of Oregon to be electronically filed with the Appellate Court Administrator, Appellate Records Section, 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 ORAP 5.05(2)(a)) is 7,233 words. I further certify that the size of the type in this brief is not smaller than 14 point for both the text of the brief and footnotes as required by ORAP 5.05(2)(b). /s/ Anna M. Joyce ANNAM. JOYCE #013112 Solicitor General anna.joyce@doj.state.or.us Attorney for Defendant-Appellant
Al\1J:mlk/3802782