Argued and submitted March 12, 2013 at Willamette University College of Law, Salem.
On review from the Court of Appeals, CC D100632T, CA A145446.[*]
Ryan Kahn, Assistant Attorney General, Salem, argued the cause and filed the brief for petitioner on review. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Morgen E. Daniels, Deputy Public Defender, Salem, argued the cause and filed the brief for respondent on review. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Article I, section 11, of the Oregon Constitution provides that, among other things, "[i]n all criminal prosecutions, the accused shall have the right to public trial by an impartial jury in the county in which the offense shall have been committed." At issue in this case is whether that provision implicitly requires the state to treat the location where the offense was committed as a material allegation, which it must prove beyond a reasonable doubt. The state contends that nothing in the wording of Article I, section 11, requires such proof. In the state's view, the constitution merely grants a defendant a right to object -- or waive objection -- to improper venue, and in this case defendant waived that right by failing to assert it before trial. Defendant argues that, although the state is correct that Article I, section 11, itself does not say anything about requiring proof of venue as a part of the state's case, this court's cases nevertheless have read the section to impose that requirement, and, in this case, the state failed to satisfy it.
The Court of Appeals, adhering to those cases, concluded that the state was required to establish venue beyond a reasonable doubt and that, in this case, the state failed to meet that burden. State v. Mills, 248 Or.App. 648, 274 P.3d 230 (2012). The court consequently reversed the judgment of the trial court, which had rested on that court's conclusion that the state's proof of venue was adequate. We conclude that our earlier cases were mistaken in reading Article I, section 11, to require the state to prove venue as a material allegation. The venue guarantee of that constitutional provision recognizes a right to a trial in a particular place, which right must be asserted before trial. We further conclude, however, that it would be unfair to hold that defendant in this case forfeited that right, given that, under the law at the time of trial, he was permitted to raise the issue during trial. We therefore reverse the decision of the Court of Appeals, reverse the judgment of the circuit court, and remand for further proceedings.
The relevant facts are few and undisputed. A City of North Plains police officer determined that defendant was driving a vehicle at 80 miles per hour near milepost 57 on Highway 26. The officer pursued defendant and stopped him near milepost 56. The officer asked defendant for his license, and defendant admitted that his license was suspended.
The state charged defendant with driving while his license was revoked. ORS 811.182. Defendant waived a jury, and the case was tried to the court. After the state rested, defendant moved for a judgment of acquittal, arguing that the state had failed to prove beyond a reasonable doubt that he had committed the offense in Washington County. The state argued that the evidence was sufficient to permit a reasonable factfinder to determine that defendant had committed the offense in North Plains, between mileposts 56 and 57 on Highway 26, all of which are located in Washington County. The trial court agreed with the state, denied defendant's motion, and ultimately convicted defendant of the charged offense.
Defendant appealed, arguing that the facts adduced at trial were insufficient to satisfy the state's burden of proving venue beyond a reasonable doubt. The state first argued that venue should not be treated as a material allegation of an indictment that must be proved beyond a reasonable doubt. In the alternative, the state argued that the evidence that it had provided at trial sufficed to meet that burden.
The Court of Appeals reversed. The court first rejected the state's argument that venue should not be treated as a material element of the state's case, concluding that the argument was foreclosed by this court's contrary case law. 248 Or.App. at 651 n 1. The court also rejected the state's argument about the sufficiency of the evidence, concluding that it "would require speculation for a factfinder to infer that North Plains or mileposts 56 and 57 on Highway 26 are in Washington County." Id. at 653.
On review, the state renews its argument that it should not be required to prove venue as a material allegation. The state acknowledges that this court has reached a contrary conclusion in a number of decisions. According to the state, we should reconsider those decisions because none of them reflects any analysis. All simply state the conclusion that Article I, section 11, requires the state to treat venue as a material allegation, which, the state notes, Article I, section 11, does not actually say. In that regard, the state observes that Article I, section 11, declares a number of different rights -- including a public trial, an impartial jury, a copy of the charging instrument, and the ability to meet witnesses face to face -- none of which requires the state to prove anything as part of its case. The state contends that it makes no sense to select one of those rights and treat it as a material allegation that must be affirmatively proved at trial.
For his part, defendant acknowledges the state's point that the bare text of Article I, section 11, does not say anything about treating venue as a material allegation that the state must prove beyond a reasonable doubt:
"It is true that nothing in the plain text of section 11 requires the state to prove to the jury that a defendant's trial is public or that the jury is impartial. Likewise nothing in the text demands that the prosecution prove beyond a reasonable doubt that the crime took place in the county alleged in the charging document."
Defendant nevertheless maintains that the constitution must be understood implicitly to have incorporated that requirement. According to defendant, in light of the universal common-law view that venue was a material allegation that the state was required to prove, Article I, section 11, should be understood to have incorporated that common-law rule. At all events, defendant continues, that has been the manner in which this court has long construed the state constitutional venue guarantee, and that line of cases is controlling.
The parties' arguments thus require us to determine the meaning of a provision of the original state constitution, which we accomplish by examining the text of the provision in context, the historical circumstances of the adoption of the provision, and the case law that has construed it. Priest v. Pearce, 314 Or 411, 415-16, 840 P.2d 65 (1992). It is often stated that our goal is to determine the meaning most likely intended or understood by the framers of the constitution. See e.g., Doe v. Corp. of Presiding Bishop, 352 Or 77, 87, 280 P.3d 377 (2012) (in interpreting the constitution, the court "attempt[s] to understand the provision, if possible, as the framers would have understood it"). That should not be understood to mean that the purpose of the Priest analysis is to fossilize the meaning of the state constitution so that it signifies no more than what it would have been understood to signify when adopted in the mid-nineteenth century. State v. Davis, 350 Or 440, 446, 256 P.3d 1075 (2011) ("The purpose of that analysis is not to freeze the meaning of the state constitution in the mid-nineteenth century."). Instead, as we have more recently explained, our goal is to determine the meaning of the constitutional wording, informed by general principles that the framers would have understood were being advanced by the adoption of the constitution. State v. Savastano, 354 Or 64, 72, ___P.3d___ (2013).
A. Textual Analysis
We begin with the text of Article I, section 11, which provides:
"In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury in the county in which the offen[s]e shall have been committed; to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor."
Or Const, Art I, § 11 (1857). The phrasing of that section is significant in at least two respects that are pertinent to the issue in this case.
First, as the state correctly observes and defendant concedes, nothing in the wording of Article I, section 11, itself says anything about requiring the state to prove anything, much less requiring the state to prove the location of the commission of the offense as a material allegation beyond a reasonable doubt. By its terms, the constitutional provision guarantees an accused in a criminal proceeding a right to have the trial occur in a particular place, that is, "the county in which the offen[s]e shall have been committed." It does not specify anything about elements of proof.
Second, and relatedly, nothing else in Article I, section 11, says anything about matters of proof. See Davis, 350 Or at 463-64 (particular clauses of Article I, section 11, must be construed in the context of the provision as a whole). To the contrary, the provision lists "a panoply of trial-related rights, " State v. Harrell/Wilson, 353 Or 247, 262, 297 P.3d 461 (2013), that an accused in a criminal proceeding may assert or waive: the right to a public trial, to an impartial jury, to a trial in the county in which the offense was committed, to be heard by defendant or counsel, to demand the nature and cause of the accusation, to have a copy of the accusation, to meet witnesses face to face, and to have compulsory process. Each of those rights pertains to the conduct of a criminal trial. None pertains to matters of substantive proof. See generally Wayne R. LaFave, et al., 4 Criminal Procedure § 16.1(g), 744 n 241 (3d ed 2007) (observing that those courts reading constitutional venue guarantees to require proof of venue "have not explained why the prosecution bears an obligation to prove at trial that the [venue] prerequisite is met and not that other constitutional prerequisites are met (e.g., that the jury is impartial and that the case was brought to trial promptly enough * * *)").
Notwithstanding the fact that there are no words that -- at least by themselves -- could reasonably be construed to create a requirement of proof, defendant suggests that we should understand Article I, section 11, to function as a "synecdoche." A "synecdoche" refers to a rhetorical "figure of speech by which a part is put for the whole." Webster's Third New Int'l Dictionary 2320 (unabridged ed 2002). In defendant's view, the reference to the subject of venue in Article I, section 11, can fairly be seen as a "marker" that implicitly incorporates not only a right to a trial in a particular place, as the provision actually states, but also a right to require the state to prove the location of the commission of the offense as a material element of the offense itself.
As other courts have observed, the rhetorical device of synecdoche is ill-suited for application to matters of legal interpretation. See, e.g., Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 482, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) ("Not because Congress is too unpoetic to use synecdoche, but because that literary device is incompatible with the need for precision in legislative drafting."). That is because of the singular importance of the words included in -- or omitted from -- a given provision. It is simply not the province of the court to rewrite the text of the constitution to supply a provision that was not included.
That is not a matter of fastidious formalism. As this court has noted on many occasions, in construing the Oregon Constitution, the "best evidence" of what the framers of a constitutional provision intended to mean is the wording of the provision itself. See, e.g., Harrell, 353 Or at 255 ("[t]he best evidence of the voters' intent is the text and context of the provision itself"); Li v. State of Oregon, 338 Or 376, 388, 110 P.3d 91 (2005) ("the text of the constitutional provision itself provides the best evidence of the voters' intent"). Only the text of the constitution received the consideration and approval of the voters who approved it, giving it the effect of law. Cf. State v. Gaines, 346 Or 160, 171, 206 P.3d 1042 (2009) ("there is no more persuasive evidence of the intent of the legislature" than a statute's text because "[o]nly the text of a statute receives the consideration and approval of a majority of the members of the legislature, as required to have the effect of law"). Consequently, courts are obliged to respect not only what constitutional provisions state, but also what they do not. See, e.g., George v. Courtney, 344 Or 76, 85-86, 176 P.3d 1265 (2008) (declining to read into Article IV, section 10a, limitations on legislative authority that are not stated in its text).
Aside from that, the rhetorical device of synecdoche assumes a well-understood relationship between the part actually stated and the whole that is unstated. The classic examples are references to body parts -- "head count, " "counting noses, " "all hands" -- to connote whole persons, references to sailing ships as "sails, " and the like. In this case, the relationship between what Article I, section 11, says and ...