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Haugen 6560; State's Response to Mtn for Judgment on the Pleadings

Haugen 6560; State's Response to Mtn for Judgment on the Pleadings

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IN THE CIRCUIT

COURT OF THE STATE OF OREGON OF MARION

FOR THE COUNTY GARY D. HAUGEN, Plaintiff,

Case No. 12C16560 DEFENDANrs RESPONSE MOTION FOR JUDGMENT PLEADINGS' Governor of the State of TO PLAINTIFF'S ON THE

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v.
JOHN KITZHABER, Oregon,

Defendant.

ORS 20.140 - State fees deferred at filing

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INTRODUCTION In this declaratory judgment action, plaintiff challenges Governor Kitzhaber's reprieve of the death sentence imposed in his case. Plaintiff alleges that the reprieve is unlawful because it is for an unspecified period of time and because he did not consent to the reprieve. Plaintiff has moved for judgment on the pleadings pursuant to ORCP 21 B contending that, based on the matters alleged and admitted in the parties' pleadings, he is entitled to judgment as a matter oflaw. Defendant agrees with plaintiff that this court may resolve this case on the pleadings, but contends that this court, as a matter of law, must dismiss plaintiff s claim. As explained below, the Governor has sole authority and discretion to determine whether to grant clemency and in what form. Contrary to plaintiffs claims, the Governor's reprieve requires neither limitation by a date certain nor the prisoner's acceptance or consent.

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DEFENDANrS PLEADINGS
MJD/j m8/3492869· v 1

RESPONSE

TO PLAINTIFF'S

MOTION

FOR JUDGMENT

ON THE

Department of Justice 1162 Court Street NE Salem, OR 97301-4096 (503) 947-4700 I Fax: (503) 947-4792

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DISCUSSION

A.

The Governor's authority to grant clemency is broad; this court's authority to review the Governor's grant of clemency is, in turn, quite narrow.

Before explaining why plaintiffs arguments fail at each turn, a brief discussion about the limits of this court's review is warranted. Article V, section 14, of the 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, subiect to such regulations as may be provided by law. * * ';)< Under that provision, the Governor has broad authority to impose unconditional grants of clemency, and also impose conditions on a grant of clemency or revoke the clemency if any of its conditions are breached. See Carpenter v. Lord, 88 Or 128, 171 P 577 (1918); Ex parte Houghton, 49 Or 232, 89 P 801 (1907); Woodv. Fitzgerald, 3 Or 568 (1870). See also Deady, General Laws of Oregon, 1845-1864, ch XXXIII, § 333 (1866) ("The governor has the power to grant reprieves, commutations and pardons, after conviction, for all crimes *

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* * upon

such conditions and with such restrictions and limitations as he

may think proper].]"). The power to grant clemency cannot be second-guessed by either the legislative or judicial branch. Although the legislature can regulate the procedures a Governor must follow to grant clemency,' the legislature is without authority to restrict or remove the Governor's authority to grant clemency. Fredericks, 211 Or

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1 Article V, section 14, expressly permits the legislature to regulate the procedures relating to clemenc_y. A governor is required to comply with the provisions ofORS 144.649-.670, when applicable.

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DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS
MJD/jm8/3492869-vl Department of Justice
1162 Court Street NE Salem, OR 97301·4096 (503) 947·4700 I Fax: (503) 947-4792

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at 320 ("The power to pardon can neither be restricted nor taken away by legislative action.") (internal quotation marks and citation omitted). The judicial branch is without authority to approve, prohibit, or restrict a grant of clemency. Eaeret v. Holmes, 215 Or 121, 125-26,333 P2d 741 (1958). Concomitantly, if the Governor has acted within the authority conferred on him by Article V, section 14, to grant plaintiff a reprieve, his reasons for doing so are not subject to further judicial review: Where the constitution thus confers unlimited power on the Governor to grant reprieves, commutations and pardons, his discretion cannot be controlled by judicial decision. The courts have no authority to inquire mto the reasons or motives which actuate the Governor in exercising the power, nor can they decline to give effect to a pardon for an abuse of discretion. Eaeret, 215 Or at 127. See also In re Hooker, 87 So 3d 401, 406 (2012) (concluding, in the context of gubernatorial pardons, that under Marbury v. Madison,S US (1 Cranch) 137,2 LEd 60 (1803), and its progeny, "cases and controversies involving interpretation and adjudication of constitutional provisions that are textually committed to another branch of government are nonjusticiable"). Therefore, provided the Governor acts within his constitutional authority, Article V, section 14, empowers him to decide whether to grant clemency and to determine what kind of clemency to grant, and his reasons for doing so are solely within his discretion and the purview of the executive branch. The judicial branch is without authority to approve, prohibit, or restrict a grant of clemency. Holmes, 215 Or at 125-26. This court's review of the Governor's reprieve in this case, then, is quite limited: only if this court concludes that the Governor lacked the authority to grant plaintiff a reprieve can it grant plaintiff s request that this court declare the Governor's reprieve ineffective. As explained below, the Governor's authority to
DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS
MJD/jm8/3492869-vl
Department of Justice 1162 Court Street NE Salem, OR 97301-4096 (503) 947-4700 / Fax: (503) 947-4792

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grant the reprieve at issue here is entirely within the bounds of Article V, section 14.

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B.

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The Governor's reprieve was lawful, notwithstanding that plaintiff did not consent or accept it.

No dispute exists that plaintiff did not accept or consent to the Governor's reprieve. What is disputed is the legal effect of that lack of acceptance. In plaintiffs view, his failure to consent renders the Governor's reprieve null. To the contrary, in granting an unconditional reprieve, the Governor's authority is plenary and is not tethered to or limited by an individual's acceptance or rejection of the repneve. Article V, section 14 itself contains no limitations on the Governor's power to grant reprieves. Instead, it has been construed as bestowing the Governor with the unfettered "Divine" gift of mercy. Wood v. Fitzgerald, 3 Or 568, 574 (1870). The single recognized limitation on the Governor's authority relates to conditional grants of clemency. E.g., Ex parte Dormitzer, 119 Or 336,339,249 P 639 (1926).

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In Dormitzer, for instance, the Governor granted the plaintiff a reprieve on the condition that he obey "the laws of the land." ld. at 338, The plaintiff then violated the law, and the Governor revoked his reprieve. ld. In upholding the Governor's authority to do so, the Oregon Supreme Court noted that the plaintiff had "Accepted the favor of the Governor[,]" and had had the opportunity to accept or reject the conditional reprieve, ld. at 340. The plaintiff thus could not challenge the revocation of the reprieve after having violated the condition of it. Yet nothing in that opinion, nor any other that plaintiff here relies on, suggests that consent or acceptance is required as a general proposition and in cases where the reprieve is unconditional, Instead, that case stands for the rather

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Page 4 DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS
MJD/jrn8/3492869-vl
Department of Justice 1162 Court Street NE Salem, OR 97301-4096 (503) 947-4700 I Fax: (503) 947-4792

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unremarkable proposition that if a governor grants a reprieve on a condition that the individual must fulfill, that condition must be one that the individual agrees to. No similar restraint exists when a governor offers an unconditional reprieve. The cases that plaintiff relies on do not support a contrary conclusion. He points to United States v. Wilson, 32 US 150, 161, 8 L Ed 640 (1833), Burdick v. United States, 236 US 79, 35 S Ct 267,59 LEd 476 (1915), and Carpenter, 88 Or 128, all of which stated that, as a general matter, a pardon must be accepted before it is effective. Whatever merit those cases may have had, they were superseded by Biddle v. Perovich, 274 US 480, 47 S Ct 664, 71 LEd 1161 (1927). In that case, the defendant had been convicted of murder and sentenced to death by the state of Alaska. The president commuted the defendant's death sentence to life imprisonment. In challenging the conditions of his confinement some years later, the defendant argued that he had not accepted the commutation of his sentence and, as a result, was illegally incarcerated. Biddle, 274 US at 485. The Court rejected that argument. It held that that a prisoner is not required to consent to the commutation of his death sentence to that of life imprisonment. Id. at 486-87. The Court reasoned that a prisoner is not consulted with respect to his consent to the original death sentence, and so no legitimate reason exists to require the prisoner to consent to a subsequent commutation of the death sentence. Id. In so reasoning, the Court stressed that the analysis rests, not on mercy or grace, but on the constitutional authority granted to the sovereign to determine the public good: A pardon in our days is not a private act of grace from an individual happening to possess power. It is part of the Constitutiona1 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. Just as the original punishment would De imposed without regard to the prisoner's
DEFENDANTS PLEADINGS
MJD/jm8/3492869-vl

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RESPONSE TO PLAINTIFF'S MOTION FOR JUDGMENT ON THE
Department of Justice 1162 Court Street NE Salem, OR 97301-4096 (503) 947-4700 I Fax: (503) 947-4792

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consent and in the teeth of his will, whether he liked it or not, the public welfare, not his consent, determines what shall be done. Id. at 486 (internal citation omitted). To hold that the sovereign's authority is constrained by the consent of the prisoner would deprive [the sovereign] of the power in the most important cases and require him to permit an execution which he had decided ought not to take place unless the change is agreed to by one who on no sound principle ought to have any VOIcein what the law shou1d do tor the we1fare of the whole. Id. at 487. That is, it is the public welfare, and not the prisoner's consent, that determines the outcome. Id. at 486. The only question is whether the sovereign acted within the scope of his or her constitutional power to grant reprieves and pardons. Id. at 487. Although Biddle concerned the President's clemency powers, 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. Wood, 3 Or at 576-77. Accordingly, Article V, section 14, grants the Governor with broad and virtually unfettered discretion to grant an unconditional temporary reprieve of plaintiff s death sentence, and that discretion is not constrained by plaintiff s acceptance or rejection of the reprieve. Because the principles announced in Biddle apply equally to an analysis under Article V, section 14, the reprieve granted here was within the Governor's constitutional authority. But plaintiff goes a step further and argues that even assuming that consent is required only when the reprieve is conditional, his particular reprieve is, in fact, conditional. He maintains that the reprieve "imposes a particular burden on [p]laintiff, which he finds to be [an] onerous one." (Plaintiffs Supporting
DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS
MJD~jm8/3492869-vl
Department of Justice 1162 Court Street NE Salem, OR 97301-4096 (503) 947-4700 I Fax: (503) 947-4792

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Memorandum at 24). It may be that the Governor's reprieve, from plaintiffs perspective, imposes a burden on him. But that plaintiff feels burdened by the reprieve does not somehow transform an unconditional reprieve into a conditional one: the Governor has not premised or conditioned his reprieve on plaintiff agreeing to a particular act or condition. Nor, as plaintiff contends, does the uncertainty of knowing precisely when his reprieve will end constitute crud and unusual punishment under the Eight Amendment. To be sure, no one disputes that a life on death row, accompanied by an uncertainty as to the date of an execution, is not a pleasant existence. But plaintiff cites no case, nor is the Governor aware of any, that holds that the uncertainty of knowing a precise date of execution is, in and of itself, an Eighth Amendment violation. The cases that plaintiff relies upon do not stand for the proposition that uncertainty amounts of an Eighth Amendment violation. Instead, he simply cites concurrences and dissents that note that capital punishment can involve lengthy delays, delays that may exact an emotional toll on the prisoner. While that may be true in some cases, no court has held that that the emotional toll of a capital punishment constitutes an Eighth Amendment violation. Nor is the

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Governor aware of any authority, nor does plaintiff provide any, that suggests that a prisoner's discomfort with not lmowing the date of an execution can trump the inherent powers of the Governor to grant a temporary reprieve.

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c.

The reprieve need not contain a particular expiration date.

Plaintiff alternatively argues that the Governor exceeded his authority under Article V, section 14 because reprieves must carry with them a particular and specified expiration date. That argument fails. Although plaintiff is right in the sense that a reprieve is generally contemplated to be temporary in nature, no requirement exists that the reprieve specify a date certain for its expiration.
DEFENDANT'S PLEADINGS
MJD/jm8/3492869-vl

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RESPONSE

TO PLAINTIFF'S

MOTION FOR JUDGMENT

ON THE

Department of Justice 1162 Court Street NE Salem, OR 973014096 (503) 947·4700 I Fax: (503) 9474792

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By its plain terms, Article V, section 14, authorizes the Governor to issue a reprieve for any length of time he chooses. That is, Article V, section 14, itself puts no limitations or time restrictions on the Governor's authority in granting a reprieve. The term "reprieve," as the Oregon Supreme Court has noted, suggests something in the nature of a temporary status. Dormitzer, 119 Or at 339 (defining a "reprieve" as "a temporary suspension of a sentence of death" and noting that a reprieve is "an interval of time" in which the execution is delayed), The reprieve in this case, consonant with the definition of a reprieve, is temporary in nature, In the reprieve, the Governor stated: Now, therefore, by virtue of the authority vested in me by Article V, Section 14 of the Oregon Constitution, I, Jolin A. Kitzhaber, 1'vID, 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. (Am Complaint, Att at 1) (emphasis added). Thus, the.reprieve is for a limited interval of time, until the Governor completes his service. Accordingly, any time limitation that the Supreme Court has interpreted Article V, section 14, to impose has been met in plaintiffs case. Plaintiff s arguments that any reprieve must carry with it a particular expiration date quickly devolve into arguments that the Governor's reasons for granting the reprieve are invalid. For instance, plaintiff contends that the reasons for the Governor's reprieve-that the Governor believes that the laws that the reprieve is

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implementing the death penalty are "broken"-demonstrate

unlawful. (Plaintiffs Supporting Memorandum at 33-34). He also contends that the reprieve is invalid because the Governor granted it for "general" reasons, as opposed to reasons "particular" to plaintiff. (Plaintiff s Supporting Memorandum at 36).
DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS
MJD/jm8/3492869-vl Department of Justice 1162 Court Street NE Salem, OR 97301-4096 (503) 947-4700 / Fax: (503) 947-4792

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The answer to each of those arguments is the same: this court is without the authority to review the reasons that the Governor granted the reprieve. As explained above, reviewing courts "have no authority to inquire into the reasons or motives which actuate the Governor in exercising the [clemency] power." Eacret,

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215 Or at 127. Whether the Governor granted the reprieve because he believes that the system is broken or because he felt that plaintiff was particularly deserving of a reprieve matters not. The Governor has the authority to grant a reprieve for any reason that he so chooses, and no court has the power to review those reasons.' Therefore, the Governor was within his constitutional authority to grant the reprieve pursuant to its terms here, and has not abused his discretion in doing so. See Eacret, 215 Or at 127 ("Where the constitution thus confers unlimited power on the Governor to grant reprieves, commutations, and pardons, have no authority to discretion."). Plaintiff additionally contends that the Governor's temporary reprieve is, in effect, a "suspension" of the operation of the laws of Oregon in violation of Article I, section 22. (Plaintiffs Supporting Memorandum at 31-32). Article I, section 22 provides that "operation of the laws shall never be suspended, except by the Authority of the Legislative Assembly." (Jd). In plaintiffs view, because the reprieve here lacks an expiration date, it amounts to a suspension of the laws that specifically direct how a death sentence, once imposed, must be carried out. (Id.).

* * * [t]he courts

* * * decline to give effect to a pardon

for abuse of

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2 Plaintiff complains that defendant's explanation for the reprieve is historically unprecedented because it did not identify any circumstances "particular to Mr. Haugen that would have made his being rmt to death inhumane" or that would make his execution "unjust." But plaintitfhad previously noted on page 43 and 44 of his memorandum that Governor West in 1912 granted reprieves to four men who were sentenced to die in order to allow the citizens to vote on a ballot measure that would have repealed the death penalty.

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DEFENDANTrS RESPONSE TO PLAINTIFFrS MOTION FOR JUDGMENT ON THE PLEADINGS
MJD/jmS/3492869-vl Department of Justice 1162 Court Street NE Salem, OR 97301-4096 (503) 947-4700/ Fax: (503) 947-4792

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Plaintiff is wrong, and for several reasons. First, his argument is based on a factual error. As explained above, the Governor's reprieve does contain an expiration date: the end of the Governor's term in office. Second, the Governor's reprieve suspends no laws. Instead, it suspends execution of plaintiff's sentence for a temporary period of time. The laws relating to death sentences and executions remain in full force and operation, and are unaffected by the reprieve in this case. Framed more explicitly, Article I, section 40-which provides that the penalty for aggravated murder shall be death if the not affected by the Governor's reprieve in

jury makes the required findings-is

this case. Prosecutors continue to seek the death penalty in appropriate cases, juries remain free to recommend that punishment if they find that it is warranted, and the state continues to defend cases in which the death penalty has been imposed on appeal. Plaintiff's argument, in essence, reduces to the proposition that Article I, section 22 trumps the Governor's ability to grant a temporary reprieve under Article V, section 14. Yet that argument is unavailing in light of the court's obligation to give full effect and force to separate constitutional provisions, and to harmonize them. See State ex rel. Adams v. Powell, 171 Or App 81,96, 15 P3d 54 (2000) ("When possible, we must give effect "to every part and every word of a Constitution and that unless there is some clear reason to the contrary, no portion of the fundamental law shall be treated as superfluous.") (internal citations omitted). Giving that full effect to both provisions proves simple in this case: the Governor possesses the authority to temporarily suspend an individual sentence, and that temporary suspension cannot be viewed as suspending operation of the laws of the state.

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Page 10 - DEFENDANTS PLEADINGS
MJD/jm8/3 492869- vl

RESPONSE TO PLAINTIFF1S MOTION FOR JUDGMENT ON THE
Department of Justice 1162 Court Street NE Salem, OR 97301-4096 (503) 947-4700 I Fax: (503) 947-4792

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CONCLUSION The Governor has the authority to grant a reprieve in plaintiff s case, and is not limited to a date certain or by plaintiffs consent. Accordingly, plaintiffs motion for judgment on the pleadings should be denied,and the complaint dismissed.
DATED July ~, 2012. Respectfully submitted, ELLEN F. ROSENBLUM Attorney General

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12 13 14 15 16 17 18 19 20 21 MA W 1. DONOHUE #022955 TIMOTHY A. SYLWESTER#813914 Assistant Attorneys General Tel (503) 947-4700 Fax (503) 947-4792 matt.j .donohue@doj.state.or.us Timothy.Sylwester@doj.state.or.us Of Attorneys for Defendant

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Page 11 - DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR JUDGMENT ON THE

PLEADINGS
MJD/jmS/3492869-vl
Department of Justice 1162 Court Street NE Salem, OR 97301-4096 (503) 947-4700 / Fax: (503) 947-4792

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2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Page 1 I certify that on July

CERTIFICATE OF SERVICE

.a., 2012, I served the foregoing

DEFENDANT'S RESPONSE TO

PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS upon the parties hereto by the method indicated below, and addressed to the following: Harrison Latto 1631 NE Broadway No 533 Portland, OR 97232 Of Attorneys for Plaintiff HAND DELIVERY MAIL DELIVERY OVERNIGHT MAIL TELECOPY (FAX)(503) 224-3203 E-MAIL hlatto@easystreet.net

tx:

.s:

_

MATTH 1. DONOHUE #022955 TIMOTHY A. SYLWESTER #813914 Assistant Attorneys General Tel (503) 947-4700 Fax (503) 947-4792 rnatt.j.donohue@doj.state.or.us Tirnothy.Sylwester@doj.state.or.us Of Attorneys for Defendant

CERTIFICATE OF SERVICE
MJD/sjb/3427019-vl Department of Justice 1162 Court Street NE Salem, OR 97301-4096 (503) 947-4700/ Fax: (503) 947-4792

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