GARY D. HAUGEN, Plaintiff-Respondent,
JOHN KITZHABER, Governor of the State of Oregon, Defendant-Appellant.
Argued and submitted March 14, 2013
On certification from the Court of Appeals under ORS 19.405.[*] Nos. CC 12C16560, CA A152412
Harrison Latto, Portland, argued the cause and filed the brief for plaintiff-respondent.
Anna M. Joyce, Solicitor General, Salem, argued the cause and filed the brief for defendant-appellant. With her on the brief were Ellen F. Rosenblum, Attorney General, and Jake J. Hogue, Assistant Attorney General.
Bruce L. Campbell, Miller Nash LLP, filed a brief for amici curiae ACLU of Oregon, Inc., Oregon Justice Resource Center, and Oregon Capital Resource Center. With him on the brief were Elisa J. Dozono, Alexander M. Naito, Kevin Diaz, Jeffrey Ellis, and Erin McKee.
BALMER, C. J.
The Governor has the power to grant clemency, including pardons, commutations, and reprieves, pursuant to Article V, section 14, of the Oregon Constitution. This case requires us to determine what constitutes a reprieve under that constitutional provision. Specifically, we must decide whether a reprieve must have a stated end date, whether it may be granted only for particular purposes, and whether it must be accepted by the recipient to be effective.
After this court affirmed Gary Haugen's aggravated murder conviction and death sentence, he decided not to pursue further appeals, and the trial court set an execution date. Governor Kitzhaber subsequently issued a reprieve pursuant to Article V, section 14, suspending Haugen's death sentence for the duration of Kitzhaber's service as Governor. Haugen purported to reject that grant of clemency. He sought a judgment declaring the reprieve ineffective and invalid, arguing that a reprieve must be accepted to be effective, or, alternatively, that the Governor's action did not qualify as a reprieve. The trial court agreed that a reprieve must be accepted to be effective and accordingly ruled the Governor's grant of clemency ineffective because Haugen had rejected it. The Governor appealed, the Court of Appeals certified the appeal to this court, and this court accepted the certification. See ORS 19.405 (procedures for certification of appeal). For the reasons set forth below, we conclude that the reprieve is valid and effective. Accordingly, we reverse the judgment of the trial court.
I. FACTS AND PROCEEDINGS BELOW
The facts are undisputed. Gary Haugen has been an inmate in the Oregon State Penitentiary since 1981, when he was convicted of murder and sentenced to life in prison. In 2007, while he was serving that sentence, a jury convicted Haugen of aggravated murder for the murder of a fellow inmate, and the jury sentenced Haugen to death. This court affirmed the judgment of conviction and sentence of death. State v. Haugen, 349 Or 174, 176, 243 P.3d 31 (2010).
After this court affirmed Haugen's conviction and sentence, he decided not to pursue any further appeals. Following two death warrant hearings, the trial court set an execution date of December 6, 2011. Before that date, Governor Kitzhaber issued a reprieve, which read, in part:
"WHEREAS, Oregon's application of the death penalty is not fairly and consistently applied, and I do not believe that state-sponsored executions bring justice;
"NOW, THEREFORE, by virtue of the authority vested in me by Article V, Section 14 of the Oregon Constitution, I, John A. Kitzhaber, MD, Governor of the State of Oregon, hereby grant Gary D. Haugen a temporary reprieve of the aforementioned death sentence for the duration of my service as Governor."
In response, Haugen sent a letter to Governor Kitzhaber purporting to reject the reprieve. He also filed a declaratory judgment action seeking a declaration that the reprieve was ineffective and invalid. In his complaint, he again purported to reject the reprieve. Haugen then alleged that the Governor's action was beyond his constitutional authority because the reprieve did not last for a definite period of time, was not granted based on Haugen's particular circumstances, and suspended the operation of laws based on the Governor's moral opposition to those laws. Haugen also argued that the reprieve was ineffective because a reprieve must be accepted to be effective. The Governor responded that the reprieve was properly granted under Article V, section 14, and was effective regardless of Haugen's purported rejection of it.
The trial court granted Haugen's motion for judgment on the pleadings. The court first concluded that the reprieve was not required to specify a particular date when it would expire, because it was limited to the duration of Governor Kitzhaber's service and therefore was temporary, "as is necessary to define the clemency as a reprieve." The court also reasoned that commutation of Haugen's sentence to life in prison would be the functional equivalent of an indefinite reprieve, and the court stated that "there is no question" that the Governor possesses the power to commute a sentence to life in prison. Thus, the court determined, the reprieve was not required to have a specified end date.
In addressing Haugen's acceptance theory, the trial court traced federal and state case law involving pardons and other acts of clemency. As discussed more fully below, some federal and state cases suggest that certain acts of clemency must be accepted to be effective. Although at least one United States Supreme Court case, Biddle v. Perovich, 274 U.S. 480, 47 S.Ct. 664, 71 L.Ed. 1161 (1927), expressly rejected that proposition in the context of the federal clemency power, the trial court determined that no Oregon case had relied on Biddle and that, following Biddle, at least one Oregon case had continued to adhere to the acceptance theory discussed in prior United States Supreme Court cases. The trial court therefore concluded that Haugen "has the right to reject Governor Kitzhaber's reprieve, and * * * absent acceptance a reprieve is ineffective. Because [Haugen] has unequivocally rejected the reprieve, it is therefore ineffective." Governor Kitzhaber appealed, the Court of Appeals certified the appeal to this court, and this court accepted the certification.
II. JUDICIAL REVIEW OF THE GOVERNOR'S CLEMENCY POWER
Before addressing the merits of the case, we must determine whether we have authority to decide this case, which involves the exercise of an important governmental power that the constitution entrusts to the Governor.
The "chief executive power" of the state is vested in the Governor, Or Const, Art V, § 1, and because the Governor is the head of an equal branch of government, this court must not "assume the power to question the action of the executive of the state." Putnam v. Norblad, 134 Or 433, 439, 293 P 940 (1930). Moreover, the Governor is responsible for determining the constitutionality of his actions in the first instance, and, to the extent that this court may review those actions, the court does so with that consideration in mind. See Lipscomb v. State Bd. of Higher Ed., 305 Or 472, 478-79, 753 P.2d 939 (1988) ("Governors, legislators, and other public officials are responsible in the first instance for determining their constitutional duties[.]"). That principle, however, does not exempt the Governor's actions from judicial review. See id. at 476-77, 479 (declining to adopt argument that the court should defer to the Governor's understanding of his constitutional powers if that understanding is "arguably correct, " because "[p]olitical institutions like any others may adapt to erroneous practices that should not be sustained"). For example, in Lipscomb, notwithstanding the constitution's allocation to the Governor of the power to veto legislation, this court considered whether the Governor's power to veto provisions in bills declaring an emergency permitted the Governor to veto any provision in such a bill, or to veto only the emergency clause. Id. at 474.
In this case, the parties' dispute regarding this court's authority centers on the scope of the court's authority, rather than on whether this court has authority to decide the case at all. Haugen argues that, even if the court cannot review the Governor's discretionary decision to exercise the clemency power in a particular case, nothing prevents this court from making the threshold determination of what qualifies as a reprieve. The Governor agrees that the court has authority to decide this case, but argues that, in doing so, the court does not have the authority to review the Governor's reasons for granting the reprieve.
We previously have stated that "it is not within judicial competency to control, interfere with, or even to advise the Governor when exercising his power to grant reprieves, commutations, and pardons." Eacret et ux v. Holmes, 215 Or 121, 125-26, 333 P.2d 741 (1958). That does not mean, however, that the Governor's clemency power --any more than the Governor's veto power reviewed in Lipscomb -- is completely beyond the scope of judicial review. See Lipscomb, 305 Or at 477 n 4 ("[N]o official can invoke either 'policy' or 'politics' to avoid review of actions not authorized by law[.]"). As discussed more fully below, this court has reviewed the validity of certain aspects of acts of clemency in the past. See, e.g., Ex Parte Houghton, 49 Or 232, 234-36, 89 P 801 (1907) (concluding that the Governor may attach conditions to a pardon and may enforce those conditions).
What this court has not reviewed is the Governor's exercise of discretion in invoking the clemency power, including the Governor's reasons for invoking that power. Eacret, 215 Or at 127 (noting that the Governor's "discretion can not [sic] be controlled by judicial decision"). In Eacret, this court affirmed the dismissal of a complaint filed by a murder victim's parents, who were seeking a judgment declaring that the Governor could not exercise his power to commute a death sentence because of his "conviction that the death penalty is wrong." Id. at 124. The parents sought to limit the Governor's clemency power so that it could be exercised based only on "considerations of justice in the particular case." Id. Thus, the parents sought to limit the Governor's exercise of discretion in determining both who deserved clemency and why the Governor would exercise that power. This court, however, declined to impose such limitations.
In this case, Haugen does not ask the court to limit the Governor's discretion in invoking the clemency power and instead asks the court to interpret the meaning of "reprieve" in Article V, section 14, of the Oregon Constitution. One of this court's fundamental functions is interpreting provisions of the Oregon Constitution. See Farmers Ins. Co. v. Mowry, 350 Or 686, 697, 261 P.3d 1 (2011) (noting that "this court is the ultimate interpreter of state constitutional provisions -- subject only to constitutional amendment by the people"). We conclude that we may reach the merits of the parties' arguments regarding what constitutes a reprieve.
III. ANALYSIS OF THE ARTICLE V, SECTION 14, CLEMENCY POWER
Article V, section 14, of the Oregon Constitution, quoted in full below, provides, in part, that the Governor "shall have power to grant reprieves, commutations, and pardons, after conviction, for all offences [sic] except treason, subject to such regulations as may be provided by law." Although this court previously has decided cases involving Article V, section 14, the court has not analyzed that provision using the principles described in Priest v. Pearce, 314 Or 411, 415-16, 840 P.2d 65 (1992), for interpreting original constitutional provisions. In undertaking that analysis, this court examines the text of the constitutional provision, the historical circumstances surrounding its adoption, and the case law, id., with the goal of identifying "the historical principles embodied in the constitutional text" and then applying those principles "faithfully to modern circumstances." Coast Range Conifers v. Board of Forestry, 339 Or 136, 142, 117 P.3d 990 (2005).
The Governor argues that the text, context, historical circumstances, and case law surrounding Article V, section 14, of the Oregon Constitution demonstrate that the Governor's power to grant clemency under that provision is plenary. The recipient of a grant of clemency, the Governor argues, has no power to reject it, except, perhaps, in cases where the grant of clemency requires the recipient to fulfill a condition, which the recipient can decide to fulfill or not. In making that argument, the Governor traces the development of the clemency power from its English roots to the adoption of Article V, section 14, of the Oregon Constitution. The Governor also examines -- and distinguishes -- both federal and state case law addressing the clemency power, noting that no case has directly addressed the issue presented here.
Haugen responds by renewing the arguments that he made before the trial court. The reprieve exceeds the Governor's authority, he argues, because the reprieve lacks an expiration date, is not based on Haugen's individual circumstances, and operates to suspend laws that the Governor morally opposes. Moreover, he argues, cases from this court and the United States Supreme Court demonstrate that a grant of clemency must be accepted by the recipient to be effective, and those cases do not limit the acceptance requirement to conditional acts of clemency. Alternatively, Haugen argues, the Governor's reprieve creates uncertainty surrounding whether and when he will be put to death. That uncertainty, he maintains, constitutes cruel and unusual punishment that violates ...