State Ex Rel. Roach v. Roth

652 P.2d 779, 293 Or. 636, 1982 Ore. LEXIS 1032

• Court: Oregon Supreme Court
• Decided: October 19, 1982
• Docket: SC 28803
• Status: Published

Opinions

LINDE, J.

At the opening of a criminal trial for sexual abuse, the defense moved for an order allowing the defense to interview the alleged victim, a minor in the custody of the Children’s Sérvices Division. After being advised of the objections of the caseworker and hearing arguments of counsel, the circuit court allowed the motion and issued an order addressed to Children’s Protective Services.¹ Subsequently the circuit court denied a motion by Children’s Services Division to vacate the previous order. The state, on relation of the division’s administrator, then obtained an alternative writ of mandamus from this court commanding the circuit judge, defendant in this proceeding, to vacate his order and enter a contrary order or to show cause why he had not done so. Judge Roth, in turn, has moved to dismiss the alternative writ.

The issue is framed by the state’s contention that Judge Roth had no discretion to refuse to vacate his original order because he had no authority to issue it and the judge’s contrary contention that the order was within his discretion and therefore is not reviewable by writ of mandamus.

In the course of the proceedings, the state’s challenge to the court’s authority has taken different forms. At the circuit court hearing, the prosecutor objected to the defense request on the ground that the requested interview would be contrary to the child’s welfare and that Children’s Protective Services (CPS) was performing a parental function in resisting the request. After hearing testimony from the agency’s caseworker, defendant stated that he saw no additional harm to the child (who had been interviewed by the prosecution and would be a witness at trial) in an “informal meeting” if the caseworker as well as the attorneys were present, “and if the child is reluctant to talk, just cut her off like that.” He therefore allowed the defense motion and subsequently signed an order that Children’s Protective Services “make the child. . . available for and submit to an interview” in the presence of these persons.

In the mandamus proceedings in this court, the state expressly disavows any claim that defendant abused his discretion. It argues that the judge lacked authority altogether to issue the challenged order, without regard to the facts of the particular situation. We turn, therefore, to the question whether the court had no authority to order CPS to allow the defense access to a child in its custody at all.

Defendant cites State v. York, 291 Or 535, 543, 632 P2d 1261 (1981), in which we stated that “the state cannot advise a witness not to speak to the defense attorneys.” That case did not involve a pretrial order but an appeal from a conviction. We did, however, state that a defendant who is prevented from interviewing a witness should “take appropriate action to overcome the obstacle” and could request the assistance of the court to do so. 291 Or at 543. The issue is whether “appropriate action” includes an order in a criminal proceeding addressed to someone other than the prosecutor.

Defendant points to no statutory source of authority to issue such an order, and we are aware of none. The pretrial discovery rules of ORS 135.805 to 135.873 do not extend to the present order to CPS. Without a source of authority there is no general power, merely by virtue of conducting a trial, to order persons how to conduct themselves outside the courtroom.² If independently of an order a person has a legal duty to take or refrain from certain action, that duty may be enforceable by some injunctive or mandatory proceeding against that person, but this does not mean that a court is áuthorized to command such conduct by an order made in the criminal case.

Defendant cites holdings by other courts that have ordered defense access to witnesses in official custody. Indeed, the point at issue in the cases is not whether a court may order such access but whether it must do so, in other words, under what circumstances the order is even a matter of discretion.³ The decisions rest on a variety of statutory or constitutional principles,. of which some may have analogues in this state and others not.⁴ We do not reject the principle of these holdings that the state may not deny defense access to a witness in official custody. None of the many reported cases we have examined, however, show a trial court order addressed to someone other than the prosecutor, at least so far as can be discerned from the appellate opinions.

The distinction is important both to procedure and to the relevant consequence of noncompliance. The prosecutor represents a party, in fact the initiating party, to the criminal case and therefore to any procedures on the defense motion for access to a witness. An agency charged with custody of the witness normally is not a party, unless made so in a separate proceeding, and can resist an order addressed to it only by attempting to enter the criminal proceeding to have the order set aside or by inviting contempt proceedings. When an order is simply addressed to the state as a party, represented by the prosecutor, it leaves to the state the relationships and arrangements among the various agencies or officials that may be involved in complying with the order.⁵ We need not anticipate in this opinion what action the court trying the criminal case would take in the event of official noncompliance with an order for defense access to a witness. For the purposes of this case, it suffices that the defendant lacked authority to issue his order to CSP. A peremptory writ of mandamus to vacate the order will issue.

Peremptory writ issued.

1 The court’s order is directed to “Children’s [sic] Protective Services,” (CPS), while plaintiff-relator here is the Administrator of the Children’s Services Division (CSD). An organization chart of CSD dated 3/17/82, reveals that Child Protective Services is one of six CSD field operations in Region 1, apparently Multnomah County. Local offices of the CSD investigate and report child abuse. See ORS 418.740 to 418.775. At trial, the terms “Childrens Protective Services,” “CPS,” “Children’s Services Division,” and “CSD” were used interchangeably. Like the parties, we shall assume that CPS and CSD are equivalent, for purposes of this case.

2 We do not, of course, refer to directions to jurors and bailiffs or other court employees.

Certain kinds of official misbehavior or unlawful interference with court proceedings can be contempt of court. ORS 33.010(c), (d), (h), (i).

3 See Commonwealth v. Balliro, 349 Mass 505, 209 NE2d 308 (1965), Annot., 14 ALR3d 652 (1967).

4 Many courts derive the right to interview witnesses from state constitutional rights to compulsory process. State v. Burri, 87 Wash2d 175, 550 P2d 507, 512 (1976); State v. Lerner, 308 A2d 324, 334-35 (RI 1973); Wisniewski v. State, 51 Del 84, 92, 138 A2d 333 (1957). Contra, State v. Goodson, 116 La 388, 40 So 771, 775 (1906). Some courts imply it from a defense right to a list of witnesses, Exleton v. State, 30 Okla Crim 224, 235 P 627, 630 (1925), or to effective counsel, Burri, supra; Wilson v. State, 93 Ga App 229, 91 SE2d 201 (1956).

The right to compulsory process is sometimes held to imply a broad state constitutional right of the accused to have a fair opportunity to prove his innocence. Leahy v. State, 111 Tex Crim 570, 13 SW2d 874, 882 (1929); State v. Papa, 32 RI 453, 80 A 12, 15 (1911). See also State v. Orona, 92 NM 450, 589 P2d 1041, 1043 (1979) (right to present a defense); Balliro, supra n. 3 (same); People v. Butler, 23 Ill App 3d 108, 318 NE2d 680 (1974) (right to fair trial).

Some federal courts derive the right from due process or an unspecified clause of the sixth amendment. See e.g. Kines v. Butterworth, 669 F2d 6, 9 (1st Cir 1981), cert den 102 S Ct 2250 (1982); United States v. Murray, 492 F2d 178, 194 (9th Cir 1973), cert den sub nom Roberts v. United States, 419 US 854, 95 S Ct 98, 42 LEd2d 87 (1974).

Washington v. Davis, 388 US 14, 87 S Ct 1920, 18 LEd2d 1019 (1967), which incorporated the sixth amendment right to compulsory process into 14th amendment due process, stated:

“The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense.”

388 US at 19. This has led to a line of decisions that the defendant’s rights are violated when the government deports a potential witness before defendant has an opportunity to examine him. See United States v. Avila-Dominguez, 610 F2d 1266, 1268-69 (5th Cir), cert den sub nom Perez v. United States, 449 US 887, 101 S Ct 242, 66 LEd2d 113 (1980).

5 ORS 44.240 provides for examination of a witness confined in a state correctional institution.

See also State ex rel Gladden v. Sloper, 209 Or 346, 306 P2d 418 (1957), which denied a circuit court’s power in a divorce proceeding to direct a comparable order to the warden of the state penitentiary for lack of statutory authority.