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Trio of Oregon cases before high court

Taking arguments to the U.S. Supreme Court carries a high price for the state

PETER WONG
Statesman Journal

November 25, 2005

Oregon will have the rare distinction of having the U.S. Supreme Court hear three cases originating in the state within a year.

The nation's highest court, during an annual term that runs from October through June, hears only about 100 cases of 7,000 petitions that justices receive from the federal appellate courts and 50 state courts.

"We are not aware of any instance in recent history when this state has had three cases before the court in one term," said Kevin Neely, a spokesman for state Attorney General Hardy Myers.

Myers personally argued one case in December 2003, but the most recent time Oregon originated three cases before the high court in a term was a decade earlier.

For state taxpayers, that distinction comes at a price.

More than a month ago, in a case that has drawn wide attention, five lawyers from the state Department of Justice defended Oregon's assisted-suicide law against a challenge from the federal Department of Justice.

The nation's first such law, which voters approved in 1994 and upheld in 1997, allows doctors to prescribe lethal doses of medication to patients who have six months or less to live.

The final cost tallies are not in, "but I'm sure it will be a million," Neely said.

On Dec. 7, lawyers will argue for the state in a death-penalty case.

The court will decide whether a jury, during a sentencing proceeding after a trial, should consider doubt about a defendant's guilt in determining whether the defendant should get the death penalty. The case is unusual in that Oregon filed the appeal, rather than defendant Randy Lee Guzek, who was convicted in a 1987 double murder in Deschutes County.

Although the Oregon Supreme Court upheld Guzek's conviction in 1990, state justices have returned his sentence to the trial court three times, most recently in 2004.

In the spring, lawyers will argue about the rights of foreigners in criminal cases that the U.S. Supreme Court accepted last week from Oregon and Virginia. The Oregon case involves a Mexican national, Moises Sanchez-Llamas, who was convicted of attempted murder in the 1999 shooting of a Medford police officer.

The court will decide whether foreigners detained in the United States must be told that they have a right to obtain help from their home country's diplomats and whether they can enforce that right in U.S. courts. The decision could drastically change arrest procedures by police.

Two lawyers will represent the state in each case, Neely said.

Neely said the expense is worth it.

"Any ruling that comes from that court is the law of the United States," Neely said. "It's best that we get it right."

In addition to airfare and accommodations, Neely said, the state's major expenses are for lawyer time and preparation for oral arguments.

"If you want to present the state's best case, the minimum number of attorneys you would send is two," he said. "While one attorney is arguing the case before the Supreme Court, someone needs to find the legal citations or take notes of what the opposing legal counsel is saying."

In oral arguments before appellate courts, lawyers do not present evidence but argue points of law based on previously submitted written arguments called briefs.

Before lawyers appear in front of the Supreme Court, they usually take part in moot-court sessions during which other lawyers ask them questions -- similar to what the justices do -- and critique their answers. Those outside lawyers are paid.

The state also pays for the use of the Washington, D.C., offices of the National Association of Attorneys General.

"There are incidental costs of doing business in Washington, as opposed to doing it across the parking lot in Salem," Neely said.

The state Department of Justice and the Supreme Court Building are separated by a parking lot.

Because of the complex nature of and wide publicity about the assisted-suicide case, five state lawyers and Neely himself were in Washington for the Oct. 5 arguments.

Expenses for the assisted-suicide case will be drawn from the budget of the Department of Human Services, which oversees the program. Expenses for the criminal cases will come from the state general fund.

Neely said he does not plan to go to Washington for the other cases.

Neely and a lawyer for the state Office of Public Defense Services said the court's decisions in the other cases -- especially the Sanchez-Llamas case -- will have important implications for criminal justice.

Back in March, the Oregon Supreme Court ruled that a 1963 international treaty applies to relationships between nations, but does not provide enforceable rights to individual criminal defendants.

The treaty is known as the Vienna Convention on Consular Rights, and 166 nations have signed it. The United States signed it in 1969, but earlier this year, President Bush withdrew from a provision that gives final authority in such cases to the International Court of Justice.

The state court ruled against Sanchez-Llamas, who after getting into a gunfight and wounding a Medford police officer, was advised of his constitutional rights to remain silent and to obtain a lawyer. Police questioned him for several hours.

His lawyer argued after his conviction that because police did not advise him about help from the Mexican consulate under the treaty, his pretrial statements to police should have been excluded as evidence. Sanchez-Llamas was sentenced to almost 20 years in prison.

Susan Drake, the senior deputy public defender who argued for Sanchez-Llamas in the Oregon Supreme Court, said she hopes the U.S. Supreme Court will take a stand for individual rights.

"The position of the state, the state courts and the U.S. State Department under President Bush is that when you violate that section of the treaty, the only remedy is for their country to protest and for us to say we're sorry," Drake said.

"Our position is that the treaty conveys rights to individuals because you have to inform people of their right to contact their national embassy. I think this is the plain reading of the treaty itself and what the International Court of Justice has stated in its opinions."

Also known as the World Court, it upheld a 2003 suit by Mexico against the United States for failure under the treaty to advise foreigners of their right to consult with representatives of their government. Mexico sued on behalf of 50 nationals held on death row in nine states.

Last year, the U.S. Supreme Court heard similar issues in a case involving Ernesto Medellin, a Mexican national on death row in Texas. But the justices dismissed the case after the Texas courts, at Bush's urging, allowed a new appeal.

A decade ago, according to a search of a Cornell Law School Web site, Oregon was the focus of four cases in the U.S. Supreme Court.

In 1994, the court decided in a landmark case that local governments must show a direct linkage when they use their authority to condemn private property for public use.

It upheld a landowner's suit against the city of Tigard, which sought to acquire land for flood control and a bicycle-pedestrian path in exchange for city approval to expand an electrical and plumbing-supply store. The state was not a legal party in that proceeding.

The court also found a violation of the U.S. Constitution when it ruled in a case that Oregon could not deny judicial review of punitive-damage awards by juries.

In both cases, the U.S. justices overturned the Oregon Supreme Court's rulings.

In the other cases, the court said that Oregon could not triple fees for disposal of out-of-state waste but that Oregon could tax railroad property while it exempted other property.