AUG 03 2012
iv1arion County Circuit

Marion County Circuit Courts



AUG 03- 2012


GARY D. HAUGEN, Plaintiff, No. 12C16560



JOHN KITZHABER, Governor State of Oregon Defendant.


f the

This dispute comes before the court on Plaintiffs he is entitled to judgment

Motion for Judgment on the Pleadings Governor John Kitzhaber,

pursuant to ORCP 21 B. Mr. Haugen contends that there is no dispute of material fact and that on the basis of the pleadings. Defendant, agrees that the relevant facts are not in dispute, but contends that his reprieve is valid and not subject to attack on any theory advanced by Mr. Haugen. Both parties are represented of the law, each attorney here. , have been personally prosecuting declaratory attorney, judgment involved with death penalty litigation defense attorney, appellate attorney, case is not intended for more than 40 years, acting as and trial judge. My decision in this Kitzhaber or the views by counsel, and have submitted legal research and oral argument job in providing

to assist the court in resolving this dispute. Considering the long but sparse history of this area involved in the case has done an exceptional references to court decisions both state and federal that have some bearing on the outcome

to be a criticism of Governor

he has expressed in his statement legislature wifl be receptive Aggravated Murder.


the reprieve he has offered to Mr. Haugen. In and share his hope that the sentencing for Oregon laws regarding

fact, I agree with many of the concerns expressed by the governor, to modifying and improving Many Oregon judges with experience

presiding over death penalty cases sums of tax dollars that

would concur that the current law requires spending extraordinary executions. However, consistent with the resolution

could be better used for other purposes to enforce a system that rarely if ever results in

of every other case, I am required to set aside my

personal views and decide this case on its merits and the law.

I find that there is no dispute as to the following 1. Gary D. Haugen was convicted 2007; 2. The conviction 3.

facts: murder and sentenced to death in May on appeal by the Oregon Supreme Court; appeals; hearings, and eventually set an execution

of aggravated

and sentence were affirmed two death warrant

Mr. Haugen has accepted the decision of the courts and has pursued no further date of December 6, 2011;

4. The trial court conducted 5. Prior to the execution term as governor explanation 6. demanded

date, Governor

Kitzhaber issued a reprieve for the length of his statement of in these findings of fact); rejected and declined the reprieve and

(the terms of said reprieve and the governor's by reference and unequivocally

being incorporated

Mr. Haugen has repeatedly

that the sentence of death be carried out. the authorities cited and hearing oral argument, is whether the reprieve the dispute has two of the case turns

After reviewing lack of a definite on whether

critical elements. The preliminary expiration a reprieve


is valid, or fails due to the

date. If that hurdle is accomplished,

the resolution

must be accepted by Mr. Haugen in order for it to be effective. that there is no requirement that a reprieve specify a particular date

I have concluded that it expires. The Governor's the functional

The reprieve, on its face, limits the reprieve to the duration clemency equivalent

of the Governor's In

service. The reprieve is thus temporary, this case, the Governor possesses this power. not the intermediate

as is necessary to define the clemency as a reprieve. Plaintiff's sentence to life in prison. This is

power includes the greater powers of pardon and commutation. of an indefinite reprieve, and there is no question

could choose to commute

that the Governor but

It is illogical to suggest that the Governor

possesses the lesser power to a sentence indefinitely, time fixed on the outside

grant a reprieve for a set time and the greater power to commute power to grant a reprieve for an indeterminate by his service as Governor. Having resolved the first issue in favor of Governor question: whether question in the affirmative, necessarily ineffective.

Kitzhaber, I turn to the second I have answered that

a reprieve must be accepted in order to be effective.

and because Mr. Haugen rejected the reprieve, the reprieve is

1 need not reach the remaining allegations in the complaint.
I present the relevant of "acceptance" case law in illustrated by Chief of from statement

Because the timing of the cases is important, chronological order.

Plaintiff relies heavily on the doctrine

Justice John Marshall in U.S. v. Wilson, 32 US 150 (1833). the facts: In Wilson, the defendant the same train robbery.

I borrow from Plaintiff's

was charged, in part, with three offenses, all stemming

The three charges were: (1) obstructing

the mall; (2) robbery of the

mail; and (3) robbery of the mail and putting the carrier's life in danger. tried and convicted of robbery of the mail and putting the carrier's

The defendant


life in danger.

He was two charges.

sentenced to death, at which time he changed his pleas to guilty on the remaining President Jackson then issued an unconditional result in lengthy imprisonment. convictions. Before judgment defendant pardon on the conviction death sentence, for the stated reason that the convictions The pardon stipulated

that resulted in a

on the other charges would likely

that it did not extend to any of the other

was imposed on one of the other charges, the trial court inquired In response, the which might be and declined any advantage !d. at 158. noticed or protection

regarding the effect of the pardon, since the charges were closely related. stated that he "waived supposed to arise from the pardon." Ultimately

the Supreme Court held that the pardon could not be judicially before the court before it could have any effect.

because it had to be brought not complete tendered; without

The Court

explained that "[a] pardon is a deed, to the validity of which delivery is essential, and delivery is acceptance. rejecting It may then be rejected by the person to whom it is no power in a court to force it on him." !d. a pardon might decline to bring it before the court. Defendant However, argues that and if it be rejected, we have discovered

at 161. Thus, a defendant This "acceptance" only conditional clemency

theory establishes a right to reject a pardon. must be accepted in order to be effective.

nothing in the

la nguage of the case suggests that the right to reject stems from a condition Indeed, the pardon in Wilson was unconditional. nature of the pardon. that pardons should be treated differently It is an act of grace and a deed. Furthermore, nothing

of the pardon. in Wilson suggests Any form of

Instead, the right to reject rises from the very

than any other form of clemency.

clemency must be accepted in order to be effective. Chronologically, commutation the next case for discussion is the first relevant Oregon case, Ex parte In Houghton, the Governor granted a prisoner a conditional The

Houghton, 49 Or 232 (1907). pursuant to a finding Court held that "[tlhe originally

to time served. The prisoner was released, but was shortly after arrested by the Governor that he had violated the terms of the conditions. commutation was an act of grace or favor, and he was not obliged to commutation, and in doing so stipulated

accept it unless he so desired. He might have refused it, and served out his sentence as imposed, but chose to accept the conditional of the conditions to the penitentiary that for a violation and remanded he might be summarily to serve the remainder is conditional, arrested by order of the Governor of his original sentence." nature of the clemency.

ki. at 234The Court

235. Though the clemency in question

nothing in the language of the case the prisoner had a right to

indicates that the right to refuse rises out of the conditional

could easily have stated that because the clemency was conditional,

reject it. Instead, the only indication commutation

is that the right to reject stems from the fact that the

"was an act of grace or favor[.]"

Id. at 234.
Wilson, and in doing

Eight years later, the U.S. Supreme Court had occasion to examine so the Court reaffirmed grand jury. dispositive, the acceptance theory. newspaper editor invoked his right to not incriminate and maintained his refusal to testify against himself.

Burdick v. U.S., 236 US 79 (1915). In Burdick, a himself and refused to testify before a The Court held that Wilson was For the the holding of Wilson: effect resistless by him to power whatever

President Wilson issued a blanket pardon to the editor, which the editor rejected and ruled again that a pardon must be accepted in order to be valid.

purposes of th is case, I refer to BurdiCk for its effect in clarifying "That a pardon by its mere issue has automatic whom it is tendered, consequences contention particularity denominated

forcing upon him by mere executive

it may have or however he may regard it, which seems to be the in the case at bar, was rejected by the court with and emphasis. The decision is unmistakable. as the 'private'

of the Government

A pardon was
magistrate, of the

act, the 'private deed,' of the executive

and the denomination act or deed without Burdick, 236 US at 90. Defendant

was advisedly selected to mark the incompleteness its acceptance."

argues that Burdick is distinguishable act as an admission of guilt. that it transforms the unconditional

because accepting the pardon in This, argues Defendant, is such pardon into a conditional argument he will be put right onerous to make a pardon

that case would implicitly an onerous condition whether

pardon subject to the power of rejection. other types of intrinsic conditions conditional.

It is unclear from Defendant's are sufficiently

Plaintiff argues the anxiety of not knowing when or whether

to death is such a condition. to reject a pardon.

However I need not address these concerns because The case is decided squarely on the inherent

Burdick provides no such distinction. any onerous condition

Nothing in Burdick suggests that the right to reject is derived from the pardon might contain.

Just a few years after Burdick, the Oregon Supreme Court cited Wilson for its articulation of the acceptance theory. Carpenter v. Lord, 88 Or 128 (1918). In Carpenter, a The court addressed various issues including On that topic, the parolee sought to avoid extradition the separation of powers between Carpenter court writes: "Again, we remember three departments, that the government of this state is divided into to California.

the three branches of government.

the legislative, the executive, and the judicial, and that

neither of these has any authority of either of the others. own judgment. his constitutional Justice Marshall

to interfere

with the exercise of the functions or of its with it in the execution

Specifically, the executive has no right to override may pardon an offender

annul the action of the circuit court, or to interfere It is true that the Governor

by virtue of unless it is

power in that behalf, but even that is not effective, in U. S. v. Wilson, 7 Pet. 150,8 L. Ed. 640:

accepted by the prisoner to whom the pardon is offered.

As said by Mr. Chief

'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 no person to whom it is tendered; and if it be rejected, we have discovered

power in a court to force it on him.' The doctrine our attention of this case has never been disturbed by any ruling to which

has been directed."

Carpenter, 88 Or at 137. The Carpenter court is citing Wilson for the proposition in order to be effective and to show that the Governor's of Justice Marshall's that a pardon must be accepted power is not absolute. Rather the While this is the first Oregon

pardoning argument.

Nothing in Carpenter indicates that the Court is bound by the decision in Wilson. Court relies on the persuasiveness

case citing Wilson for such a proposition, itis merely an extension of the philosophy articulated in Houghton - clemency is an act of grace, and the recipient is not obliged to accept it. The Court does not cite Burdick, but the use of Wilson is consistent with the analysis in Burdick. Finally, like the previous cases, nothing in the language of Carpenter indicates that the right to reject is reserved for conditional pardons. 119 Or 336 (1926}, dealing with clemency that was framed as a philosophy. The defendant in Dormitzer was granted the violated that

Ex parte Dormitzer, reprieve, further convicted defendant condition.

extends the acceptance

of possession of liquor and sentenced to six months jail. The Governor two consecutive reprieves from the jail sentence on the condition later revoked the reprieve because the defendant

that he obey the

laws of the land. The Governor

The Court spends some time discussing the nature of the clemency and whether properly framed as a reprieve, ground for complaint accept or reject the 'reprieve.'" almost no mention but ultimately it held that did not matter. The defendant because he accepted the favor of the Governor,

it was had no

and he "had the right to

Id. at 340. Nowhere in the case does the Court indicate that on the reprieve. The only significant mention is when it

t he power to re j ect the rep rieve ste m s fro m its co nd iti a na' natu re. In fa ct, th e Co urt ma kes of the condition

states that "[ilf the Governor condition,

had the authority

to grant the suspension of the jail sentence on order which would operate to remand Id. This addresses only the power of reprieves. altered its pardon of

he had a right to revoke his merciful

Edmunson to jail to serve the remainder

of his sentence."

the governor to grant and revoke conditional In the year after Dormitzer, doctrine in Biddle v. Perovich,

the U.S. Supreme Court significantly

274 US 480 (1927). The defendant
reducing the defendant's

in Biddle was convicted sentence to life in prison.

murder in federal District Court and sentenced to death. President Taft granted a commutation Many years later, the defendant have authority clemency. In an opinion

Perovich v. U.S., 205 US 86 (1907).

filed a writ of habeas corpus arguing that the President did not because he did not consent to the of whether the of the defendant. The Court

to remove him from jail to the penitentiary to commute

by Justice Holmes, the Court addressed the question a sentence over the objection

President has authority defendant is irrelevant. Id.

rejects the reason ing in Burdick - a nd therefore "[Tlhe public welfare,

in Wilson - and holds that consent of the not his consent determines what shall be done." happening to

Biddle, 274 US at 486. A pardon is "not a private act of grace from an individual possess power."

This doctrine


by Justice Holmes was never adopted Id. at 435-6.

in Oregon.

In Ex parte

Anderson, 191 Or 409 (1951), the Oregon Supreme Court cites Houghton that a pardon is "a mere act of grace[.]"

for the proposition

Thirty years after Biddle, the Oregon Supreme Court is still citing favorably Wilson.

to Wilson.


Fredericks v. Gladden, 211 Or 312 (1957), the Court quotes Carpenter which in turn quotes Indeed, the Fredericks court quotes the very language of Carpenter and Wilson in discussion here: "In Carpenter

v. Lord, 88 Or 128, 171 P 577, this court said:
may pardon an offender by virtue of his unless it is As said by Mr. Chief

'* * *

It is true that the Governor


power in that behalf, but even that is not effective

accepted by the prisoner to whom the pardon is offered.

Justice Marshall in United States v. Wilson, 32 U.S. lSD, 7 Pet. 150 (8 L. Ed. 640): '"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 no power in a whom it is tendered; and if it be rejected, we have discovered

court to force it on him." And see, 67 CJS574, Pardons, § lOb; and 39 Am Jur

546, Pardon, Reprieve and Amnesty, §§ 45,46,47."
Fredericks, 211 Or at 323.

Plaintiff provides very persuasive analysis of the case. Plaintiff argues that the citation to Carpenter and Wilson is not mere dicta, but rather forms part of the Supreme Court's argument unconditionally rejecting pardoned. the prisoner's contention that his sentence had been of the by the power of clemency, showing Plaintiff continues that the section is a rebuttal possessed a "complete" but instead subject to rejection

dissenting view that the Governor recipient. I agree.

that the clemency power is not "complete,"

It appears that the Oregon Supreme Court continued Even without

to favor the Marshall theory of

acceptance even some 30 years after the U.S. Supreme Court adopted the Holmes doctrine. these later cases I find no reason to reject the Oregon Supreme Court's statement at the federal level. "When this court gives Oregon 293 Or 741, 749 (1982). corresponding to a federal opinion, our decision remains the Oregon law of the law based on the change in doctrine law an interpretation even when federal doctrine Defendant

later changes." State v. Caraher,

can point to no Oregon case adopting the Holmes theory of clemency. contention that he reprieve. on the pleadings is appropriate. Kitzhaber's I conclude that a it is therefore

Thus the balance of cases, even if some are dicta, supports Plaintiffs has a right to reject the Governor's

The parties agree that judgment Plaintiff has the right to reject Governor reprieve is ineffective. ineffective.

reprieve, and that absent acceptance rejected the reprieve, and submit it

Because Plaintiff has unequivocally

Counsel for Plaintiff will prepare a proposed form of judgment

pursuant to Oregon Rules of Civil Procedure. The parties have agreed that the ruling in this case will control the next step in the criminal case, therefore sentencing in aggravated murder cases. as soon as this decision is final, a hearing will be set to establish an execution date in accordance with the statutes concerning

August 3, 2012


p, Alexander

Senior Circuit Judge