OrCon Law

Save the Date for the Constitutional Law CLE, November 3, 2006

Today, our chair, Jim Westwood, sent out this notice regarding this year's consitutional law CLE, entitled "The U.S. Constitution - Alive and Breathing; the Oregon Constitution - Still Original."  The event, to be held November 3 at the Convention Center in Portland, promises some intriguing lectures and debates:

On Friday, November 3, 2006, the Constitutional Law Section will cosponsor the CLE seminar, "The U.S. Constitution - Alive and Breathing; the Oregon Constitution - Still Original," at the Oregon Convention Center in Portland. The morning session will cover a U.S. Supreme Court wrap-up and an in-depth look at the Unitary Executive by constitutional law experts Erwin Chemerinsky, Phillip Cooper and Douglas Kmiec. The afternoon will focus on the Oregon Constitution - discerning original intent from available records and how to raise, brief, and argue state and federal constitutional issues. A special lunch presentation will be given by former Oregon Supreme Court Justice Hans A. Linde.

Please save the date and plan on joining us for about as much constitutional law as you can get in a day!

Split the Ninth Circuit?

The Senate Judiciary Committee is holding hearings on a proposal to split the Ninth Circuit.  An excerpt from a 9/21/06 Los Angeles Times article reporting on the hearings:

"The overwhelming majority of the circuit's judges, led by Chief Judge Mary M. Schroeder of Phoenix, signed a letter reiterating their opposition to the breakup. Schroeder, Carlos Bea of San Francisco, Consuelo Callahan of Sacramento and four other 9th Circuit judges — Alex Kozinski, a Reagan appointee from California, Sidney Thomas, a Clinton appointee from Montana, Johnnie Rawlinson, a Clinton appointee from Nevada, and Richard Clifton, a George W. Bush appointee from Hawaii — attended the hearing to express their opposition.

"More than 60 federal trial judges, including liberal Lawrence Karlton of Sacramento and conservative Sam Conti of San Francisco, also said they oppose a split."

Judge Schroder was appointed by President Carter; Judges Bea and Callahan were appointed by President George W. Bush.

Ninth Circuit Holds that Eighth Amendment Bars State Death Row Inmate From Voluntarily Waiving Right to Appeal Denial of Habeas Relief

In Comer v. Schriro (a case that is almost certain to see further appellate proceedings), the Ninth Circuit held that it would be an Eighth Amendment violation for a federal appeals court to permit a habeas petitioner on state death row to competently and voluntarily waive his right to appeal the denial of federal habeas corpus relief.  The petitioner Comer, who is on death row in Arizona, filed a federal habeas petition challenging his conviction and capital sentence.  The petition was denied, and Comer appealed.  Comer later decided that he wanted to be executed, and he and the state moved to dismiss the appeal.  The appellate court remanded to the district court to determine whether Comer's waiver of his appeal rights was competent and voluntary.  The district court found that it was, and the case returned to the Ninth Circuit.

The Ninth Circuit, on review of the district court's competency determination, agreed that petitioner was competent to waive his appeal rights.  Nonetheless, the court refused to dismiss the appeal because it concluded that, notwithstanding petitioner's waiver, dismissal would amount to a violation of the Eighth Amendment because it "would be permitting the State to execute Comer without any meaningful appellate review of his previously filed federal habeas claims."  The court reasoned:

The defendant is not taking his own life, he is coopting the state's power of the state's capital punishment system to kill -- a power that must only be wielded in accordance with the Constitution's fundamental protections.  The people's interest in justice, which forms the basis of the state's power to execute, should not be so easily comandeered.  The right to die is not synonomous with the right to kill.

Reviewing the merits of petitioner's claims, the court concluded that the imposition of the death sentence violated petitioner's due process rights, because petitioner "was sentenced while shackled, nearly naked, bleeding, and exhausted."  It therefore granted the writ of habeas corpus.

Judge Rymer dissented, reasoning that petitioner's competent, voluntary waiver of his right to appeal the denial of his habeas petition ended the case, and that is was an abuse of the judicial power to grant relief under the circumstances.

Supreme Court holds that IP8 Does Not Violate Separate Vote Provision

In Meyer v. Bradbury, the Supreme Court (De Muniz, C.J.) reversed the decision of the Court of Appeals, and affirmed the trial court's decision, holding that IP8, which would authorize the legislature, by a 3/4 vote of both houses, or the people, through the initiative process, to enact campaign finance regulations, does not violate the Article XVII, section 1 of the Oregon Constitution.  The court reasoned that the measure made more than one change to the constitution, but that the changes were "closely related" because the imposition of the supermajority requirement is a "procedural condition" governing the exercise the proposed authority to regulate campaign finance.

The court also responded to the California Supreme Court's criticism in Californians for an Open Primary v. McPherson, 134 P3d 299 (2006) (addressed in this blog here and here) by stating that its narrow reading of Oregon's separate vote provision was justified because of importance of the constitution as the state's paramount organic law:

In Oregon, however, the separate-vote requirement found in Article XVII, section 1, has a different application and is driven by a decidedly different rationale. As this court interpreted that provision in Armatta, the separate-vote requirement serves as a safeguard that is fundamental to the concept of a constitution. 327 Or at 276. In reaching that conclusion, this court did not perceive any reason to elaborate on why or how the concept of a constitution was important; instead, it noted only that the act of amending a state's organic law differs significantly from enacting or amending legislation. Id.

What the court only implied in that passage in Armatta, however, it has made explicit elsewhere. For example, this court observed in State v. Stoneman, 323 Or 536, 542, 920 P2d 535 (1996):

"It is axiomatic that, among the various interests that the government of this state seeks to protect and promote, the interests represented by the state constitution are paramount to legislative ones."

(Emphasis added.) In our view, that hierarchy of law always must be acknowledged and respected. Consistently with that view, this court expressly has held that Oregon's separate-vote provision -- which applies to only constitutional amendments -- imposes a narrower requirement on the act of amending the constitution than does its counterpart, the single-subject rule, which applies equally to statutory as well as constitutional measures. Armatta, 327 Or at 276. To implement that narrower requirement, we do not search simply for a unifying thread to create a common theme, thought, or purpose from a melange of proposed constitutional changes. Instead, we inquire whether, if adopted, a proposal would make two or more changes to the constitution that are substantive and are not closely related. If so, the proposal violates the separate-vote requirement of Article XVII, section 1, because it would prevent voters from expressing their opinions as to each proposed change separately. Id. at 277. We turn now to that inquiry respecting IP 8.

Justice Durham dissented, concluding that he could not find a close relationship between the change the speech rights occasioned by the expansion of legislative authority to regulate campaign finance, and the accompanying change to the constitutional voting requirements governing the legislature.

Separate Vote Case Tomorrow

According to this announcement on its website, the Supreme Court will issue an opinion tomorrow in Meyer v. Bradbury, the separate vote challenge to IP8 argued last Tuesday.