State v. Cookman

873 P.2d 335, 127 Or. App. 283, 1994 Ore. App. LEXIS 611

• Court: Court of Appeals of Oregon
• Decided: April 20, 1994
• Docket: 91-1524; CA A73459
• Status: Published

Opinions

ROSSMAN, J.

The state appeals from an order allowing defendant’s demurrer to an indictment that charged him with using a child in a display of sexually explicit conduct, dealing in depictions of sexual conduct involving a child and sexual abuse in the first degree. ORS 163.670; ORS 163.673; ORS 163.425.¹ The demurrer was based on the state’s failure to bring those charges within the applicable statute of limitations. We affirm.

The pertinent facts are not in dispute. The indictment charged that defendant committed the crimes between June 1,1986, and September 1,1986. In 1986, the limitations period for those crimes was three years. ORS 131.125(2). Accordingly, the period expired on September 1,1989, at the latest. In 1991, however, the legislature amended ORS 131.125(2) to extend the limitations period to six years. Or Laws 1991, ch 388, § l.² The legislature expressly declared that it intended the six-year limitation to apply to crimes committed before the effective date of the amendment:

“The amendments to ORS 131.125 by section 1 of this Act apply to all causes of action whether arising before, on or after the effective date of this Act, and shall revive any cause of action barred by ORS 131.125 (1989 Edition) if the action is commenced within the time allowed by ORS 131.125 as amended by section 1 of this Act.” Or Laws 1991, ch 388, § 2. (Emphasis supplied.)

The amendment became effective on September 29, 1991, more than two years after the three-year limitation period in this case had expired. The state filed the indictment on October 3, 1991.

Defendant demurred to the indictment, arguing that retroactive application of a statute of limitations to revive a previously time-barred criminal prosecution violates both the federal and state constitutional protections against ex post facto legislation and the Due Process Clause of the Fourteenth Amendment.³ The trial court found for defendant under the ex post facto clauses. The state disagrees with that holding, and argues on appeal that the state and federal ex post facto prohibitions are to be construed similarly and that neither one confers upon defendant a constitutional right to be free from criminal prosecution under these circumstances. However, it is not necessary to decide those issues, because, in our view, revival of a lapsed prosecution is so extremely unfair that it transgresses the recognized due process principle of “fundamental fairness.”

The dissent erroneously concludes that the question of fundamental fairness was not properly preserved below or presented on appeal. The Supreme Court has said:

“We have previously drawn attention to the distinctions between raising an issue at trial, identifying a source for a claimed position, and making a particular argument. The first ordinarily is essential, the second less so, the third least.” State v. Hitz, 307 Or 183, 189, 766 P2d 373 (1988). (Emphasis in original.)

Here, the parties raised the issue of whether it is unconstitutional for the state to resurrect a previously time-barred prosecution and identified the federal Due Process Clause as the source for the position that it is. The record discloses that, during oral argument, the issue of fairness was brought before the court by both the state and defendant. The state admitted that “there is an argument that due process of law applies here” and that “it could be fundamentally unfair to [revive a prosecution] once the statute of limitations has died.” The state also encouraged the court to consider that question so that its decision in this matter would be ‘ ‘based on a complete constitutional background.” Additionally, defendant offered to submit a supplemental brief addressing the fairness question to aid the court in its decision and to ensure that the issue was “before the Appellate Court.” The court indicated that the issue was preserved for the record and that it would direct more briefing on the question if the ex post facto issue was not dispositive. Because the court ruled in favor of defendant on ex post facto grounds, no supplemental briefs were submitted. However, the court had been given the opportunity to consider the fundamental fairness issue. Under these circumstances, that issue was properly raised below and preserved for review.

Moreover, contrary to the dissent’s assertion, defendant has properly advanced this issue on appeal. In the summary of his argument, he avers that “ ‘reviving’ a lapsed prosecution violates the due process clause of the Fourteenth Amendment [to] the United States Constitution.” In the final section of his brief, entitled “ ‘Revival’ of a Lapsed Prosecution Violates the Due Process Clause,” defendant argues that the practice of extending an expired limitation period to revive a previously time-barred prosecution is “fundamentally unfair” under the Due Process Clause. Having established that the due process issue is properly before us, we turn to its merits.

In Dowling v. United States, 493 US 342, 110 S Ct 668, 107 L Ed 2d 708 (1990), the United States Supreme Court identified a category of infractions that violate the “fundamental fairness” component of the Due Process Clause. Quoting United States v. Lovasco, 431 US 783, 790, 97 S Ct 2044, 52 L Ed 2d 752 (1977), the Court noted that the action complained of — here, revival of a lapsed prosecution —will be considered fundamentally unfair if it

“violates those ‘fundamental conceptions of justice which lie at the base of our civil and political institutions,’ and which define ‘the community sense of fair play and decency.’ ” 493 US at 353. (Citations omitted.)

Here, the state has deviated from ‘ ‘fundamental conceptions of justice” and elementary standards of “fair play and decency” by attempting to retroactively apply ORS 131.125(2), as amended, to defendant. In People ex rel Reibman v. Warden, 242 AD 282, 285, 275 NYS 59, 62 (Sup Ct 1934), the New York Supreme Court made the following observations about the nature and purpose of criminal statutes of limitation:

“In the absence of statutes of limitations specially applicable to criminal cases, a prosecution may be instituted at any time, however long after the commission of the criminal act. An act of limitation is an act of grace in criminal prosecutions. The state makes no contract with criminals at the time of the passage of the act of limitation that they shall have immunity from punishment if not prosecuted within the statutory period. Such enactments are measures of public policy only. They are entirely subject to the will of the legislature, and may be changed or repealed altogether in any case where a right to acquittal has not been absolutely acquired by the completion of the period of limitation. A statute of limitations in criminal cases therefore differs from one applicable to civil actions, for while the latter bars the remedy only and not the cause of action, a statute limiting criminal prosecutions destroys the right of action as well as the remedy. In other words, statutes of limitation in criminal cases differ from those in civil cases in that in civil cases they are statutes of repose while in criminal cases they create a bar to the prosecution.” (Emphasis supplied; citations omitted.)

We echoed those sentiments in State v. Dufort, 111 Or App 515, 519, 827 P2d 192 (1992), where, in quoting the Washington Supreme Court, we said:

“ ‘[SJtatutes of limitation are matters of legislative grace; they are a surrendering by the sovereign of its right to prosecute. Since they are measures of public policy only, and subject to the will of the Legislature as such, they may be changed or repealed in any case where the right to a dismissal has not been absolutely acquired by the completion of the running of the statutory period of limitation.’ State v. Hodgson, 108 Wash 2d 662, 667, 740 P2d 848 (1987).” (Emphasis supplied.)

As the Hodgson court recognized,

“ ‘[ujntil the statute has run it is a mere regulation of the remedy * * * subject to legislative control. Afterwards it is a defense, not of grace, but of right, not contingent, but absolute and vested, * * * not to be taken away by legislative enactment.’ ” 108 Wash 2d at 668, quoting People ex. rel. Reibman v. Warden, supra, 242 AD at 285. (Emphasis supplied.)

The notion that a “perfected” or “complete” statute of limitations defense cannot be abrogated or dispensed with by subsequent legislative action is by no means foreign to this court. In State v. Tyler, 108 Or App 378, 815 P2d 1289 (1991), we were asked to decide whether the legislature intended the 1989 extension of the limitation periods in ORS 131.125(2) to apply retrospectively. In Tyler, as here, the former limitation period on the defendant’s crimes had expired before the extensions became effective. We reasoned that the legislature did not intend the extensions to apply retroactively because the law was silent as to its retroactivity and because

“[a]pplying the extended limitation period to the crimes alleged here would impair defendant’s right to be free from prosecution that had already inured by expiration of the period in the old statute.” 108 Or App at 381. (Emphasis supplied.)

In State v. Dufort, supra, we characterized Tyler as holding “that an extended limitation period did not apply to a criminal prosecution where the shorter period had expired before the longer period was enacted.” Ill OrAppat519n3. We noted the distinct difference between extending an existing limitation period and extending a lapsed limitation period so as to resurrect a case that has not been prosecuted:

“ ‘Certainly it is one thing to revive a prosecution already dead and another to give it a longer lease of life. The question turns on how much violence is done to our instinctive feelings of justice and fair play. For the state to assure a man that he has become safe from its pursuit, and thereafter to withdraw its assurance, seems to most of us unfair and dishonest. But, while the chase is on, it does not shock us to have it extended beyond the time first set, or, if it does, the stake forgives it.’ ”111 Or App at 520 n 3, quoting Falter v. United States, 23 F2d 420, 425 (2d Cir.), cert den 277 US 590 (1928).

It is settled tradition that the state cannot, consistent with the longstanding due process demands of fundamental fairness, enact a law that extends a statute of limitations so as to resurrect a criminal case in which the statutory period has already run. Accordingly, we conclude that, as applied to defendant, ORS 131.125(2), as amended by Oregon Laws 1991, chapter 388, section 2, violates the Due Process Clause. Insofar as that statute purports to revive criminal prosecutions that were previously time-barred, we hold that it is invalid and that the limitations period applicable to defendant is the three-year period that was in effect at the time the crimes were allegedly committed. Under that statute of limitations, the state is barred from commencing a criminal prosecution against defendant.

In short, we cannot accept the proposition that the state has the supernatural power to exhume and revitalize a prosecution that is dead and buried.

Affirmed.

1 Before certain amendments in 1991, the crime of sexual abuse in the first degree was a Class C felony. ORS 163.425 (1989). In 1991, ORS 163.425 was amended so that it now defines the crime of sexual abuse in the second degree. ORS 163.427 was enacted to define sexual abuse in the first degree, which is now a Class B felony. Or Laws 1991, ch 830, §§ 2, 3.

2 ORS 131.125(2) was also amended in 1989 to extend the limitations period for the crimes enumerated in that subsection. Those amendments, however, were held not to apply to crimes committed before the effective date of the amendments. State v. Tyler, 108 Or App 378, 815 P2d 1289 (1991). The 1989 amendments are not at issue here.

3 Oregon does not have a due process clause in its state constitution. See State ex rel Circus Circus Reno, Inc. v. Pope, 317 Or 151, 156, 854 P2d 461 (1993); State ex rel Jones v. Crookham, 296 Or 735, 740, 681 P2d 103 (1984).