State v. Gonzales

VAN HOOMISSEN, J.,

concurring.

ORS 132.430(2) provides:

“When an indictment indorsed ‘not a true bill’ has been filed with the clerk of the court, the effect thereof is to dismiss the charge; and the same cannot be again submitted to or inquired of by the grand jury unless the court so orders.”

See State v. Turner, 104 Or 334, 207 P 602 (1922).

The issue here is whether the prosecutor may charge a person in district court by misdemeanor complaint after the grand jury has returned a “not true bill” on a felony charge for the same conduct and based on the same evidence. The majority concludes he may. While I am not certain that the majority is wrong, I am sufficiently concerned about this practice that I feel compelled to note my concern and its basis.

First, there may be merit in defendant’s equal protection argument. The majority finds, that “defendant is treated no differently than some other persons accused of a misdemeanor.” But he is treated differently than other persons whose cases have been considered by the grand jury. Second, arguably, the action of the prosecutor here violates the spirit of ORS 132.430(2).1 Cf. The State v. Boswell, 104 *22 Ind 541, 4 NE 675 (1886) (an information should not be filed against a defendant, after grand jury had been discharged without finding an indictment against him); Richards v. State, 22 Neb 145, 34 NW 346 (1887), overruled on other grounds Horbach v. City of Omaha, 49 Neb 851, 69 NW 121 (1896) (district attorney should not have filed information, after grand jury had found cause of action against defendant unwarranted; People v. Pack, 39 NYS 2d 302, 179 Misc 316 (1942) (spirit of statute requires that once grand jury has declined to indict defendant, case generally should not be submitted to another court). Third, there is no reason to believe that the legislature has ever specifically considered the implications of ORS 132.430(2) in the context of this case, and especially not after the 1974 adoption of subsections (4), (5) and (6) of Art. VII (Amended) of the Oregon Constitution by the people.

I believe this practice is one deserving of legislative review and direction.

The “spirit” of the statute is that the state should not harass its citizens. Once a grand jury has considered a case and has determined that no charge should *22 be brought, that should end the matter, unless and until the state can satisfy a judicial officer that the case should be resubmitted to a grand jury for further consideration. I believe that same spirit underlies ORS 131.515(2) (when a previous prosecution bars subsequent prosecution). See State v. Brown, 262 Or 442, 497 P2d 1191 (1972), overruled on other grounds, State v. Hammang, 271 Or 749, 756, n 4, 534 P2d 501 (1975).