                                                                    Filed: June 7, 2012

               IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,

                                                                               Plaintiff,
         v.


THOMAS HARRY BRAY,
                                                                             Defendant.
__________________________________________

J. B.,

                                                                              Appellant,
         v.


BRIGID TURNER,
prosecuting attorney;
THOMAS HARRY BRAY;
and STATE OF OREGON,

                                                                           Respondents.

                         (CC 11FE0228, 11FE1078; SC S060320)

         En Banc

         On interlocutory appeal pursuant to ORS 147.537.*

         Argued and submitted June 1, 2012.

      Jennifer Coughlin, Brothers, Hawn & Coughlin, Bend, argued the cause and filed
the Notice of Interlocutory Appeal for appellant.

      Brigid K. Turner, Deputy District Attorney, Bend, argued the cause and filed the
response for respondent prosecuting attorney.

      Greg Rios, Assistant Attorney General, Salem, argued the cause and filed the
response for respondent State of Oregon. With him on the response were John K.
Kroger, Attorney General, and Anna M. Joyce, Solicitor General.

      Stephen A. Houze, Portland, argued the cause and filed the response for
respondent Thomas Harry Bray.

      LANDAU, J.

      The interlocutory appeal is dismissed.

      De Muniz, J., concurred and filed an opinion.

      *Appeal of order from Deschutes County Circuit Court, A. Michael Adler, Judge.
 1                 LANDAU, J.

 2                 In this criminal case, the victim has filed an interlocutory appeal,

 3   challenging several orders of the trial court that she contends violate her right to "refuse

 4   an interview, deposition or other discovery request by the criminal defendant," under

 5   Article I, section 42(1)(c), of the Oregon Constitution. For the reasons set out below, we

 6   conclude that this court lacks jurisdiction and, therefore, dismiss the interlocutory appeal.

 7                 The relevant facts are uncontested and largely procedural. The state

 8   charged defendant with a variety of sex offenses arising out of an incident in February

 9   2011 in which the victim reported that defendant repeatedly and forcibly raped her.

10   Defendant apparently intends to raise a defense of consent. Specifically, defendant

11   contends that the victim was sufficiently uncertain about what had transpired that she felt

12   the need to conduct an Internet search regarding the legal definition of "rape" before

13   reporting the incident to the police. That fact, defendant asserts, would tend to contradict

14   her claim that defendant repeatedly and forcibly raped her.

15                 Defendant attempted to obtain from Google, Inc., by subpoena duces tecum

16   "all internet activity and searches conducted by [the victim], email [of the victim], from

17   February 22, 2011 to March 31, 2011, including IP addresses, web searches requested,

18   results, and sites viewed" as well as "[a]ny and all of [the victim's] email * * * to or from

19   anyone concerning [defendant] from February 22, 2011, to March 31, 2011." Google

20   denied defendant's request, asserting that, under the Electronic Communications Privacy

21   Act, 18 USC § 2702(a) (2006), the company was prohibited from disclosing the

22   information without the victim's consent or a court order.

                                               1
 1                 Defendant then moved for an order compelling the state to obtain the

 2   requested information from Google and provide him with copies of any information

 3   produced. Defendant argued that, under the Electronic Communications Privacy Act, the

 4   court was authorized to order the state to obtain information that is "relevant and material

 5   to an ongoing criminal investigation." 18 USC § 2703(d) (2006). The prosecuting

 6   attorney objected. In October 2011, the trial court held a hearing on defendant's motion.

 7   The court ruled that it was inclined to grant defendant the requested relief, but preferred

 8   to ask the victim for her consent first. The court ordered the prosecuting attorney to seek

 9   the victim's consent to the release of the Google information.

10                 The prosecuting attorney requested the victim's consent, but she refused.

11   Defendant then renewed his motion to compel. The prosecuting attorney opposed

12   defendant's motion, arguing that requiring the discovery of the requested information

13   following the victim's refusal to provide it would violate her right to refuse a discovery

14   request under Article I, section 42(1)(c), of the Oregon Constitution. In December 2011,

15   the trial court held a hearing on the prosecuting attorney's objections. Ultimately, the

16   trial court overruled those objections and ordered the prosecuting attorney to obtain the

17   Google information on defendant's behalf.

18                 Over the next several months, the prosecuting attorney resisted the trial

19   court's order, contesting its ability to comply with the order for various reasons. By

20   March 2012, the prosecuting attorney had yet to comply with the trial court's order.

21                 On March 28, 2012, the prosecuting attorney filed, on behalf of the victim,

22   a claim, under ORS 147.515(2)(a), asserting a violation of the victim's constitutional

                                               2
 1   rights. The prosecuting attorney alleged that the trial court's discovery order violated the

 2   victim's right under Article I, section 42(1)(c), to refuse discovery. The prosecuting

 3   attorney requested, on behalf of the victim, that the trial court "enter an order vacating all

 4   previous orders requiring disclosure of [the victim]'s Internet Service Provider, IP

 5   Address, and Google account records, and additionally order that any further attempts by

 6   defendant to obtain [the victim]'s Google account records be prohibited."

 7                 On April 6, 2012, the trial court held a hearing on the victim's claim.1

 8   Following arguments on the matter, the trial court denied the relief requested by the

 9   victim. The trial court explained that "the Court has never ordered the victim to produce

10   anything and so there is nothing that the Court has ordered that is inconsistent with the --

11   her protections under Article I, [s]ection 42[,] of the Oregon [C]onstitution[.]" On the

12   same day, the trial court entered a document entitled "Court Minutes, Journal Entry and


            1
                    The hearing was scheduled as a result of a request made by the prosecuting
     attorney on the victim's rights claim form. Generally, if a victim "informs the court of a
     facially valid claim" using the form provided by the Chief Justice -- which, in this case,
     the victim did -- the trial court "shall promptly issue the order to show cause described in
     ORS 147.517." ORS 147.515(3). After issuance of the order to show case, "a victim, the
     prosecuting attorney, the defendant or any person against whom relief is requested may
     contest the claim by filing a response." ORS 147.517(4)(a). If no party responds to the
     order to show cause, no hearing is required. ORS 147.520.

            In this case, the trial court did not follow the correct procedures and did not issue
     an order to show cause. Instead, it simply held a hearing on the claim. Still, because it
     appears that all relevant parties had notice of the claim and an opportunity to be heard,
     "we find that the apparent failure to follow the prescribed legal procedures ha[s] no legal
     significance to the outcome of this case." State v. Barrett, 350 Or 390, 395 n 2, 255 P3d
     472 (2011).




                                                3
 1   Order," which provided that the court "denies the State's request as outlined in the Claim

 2   of Violation of Crime Victim's Rights."

 3                 On April 12, 2012, the prosecuting attorney submitted a form order that

 4   purported to reflect the trial court's "previous orders in this case related to the victim's

 5   Google search history." The trial court responded that "[t]he prior orders of the court are

 6   all on the record." The following day, Deschutes County District Attorney, Patrick

 7   Flaherty, sent a letter to the trial court requesting that it sign the previously submitted

 8   order. It appears from the record that the trial court did not immediately respond to that

 9   letter.

10                 On April 27, 2012, the victim, represented by private counsel, filed with

11   this court a notice of interlocutory appeal. Meanwhile, on May 14, 2012, the trial court

12   entered an order that expressed in writing its reasons for its April 6 decision. Three days

13   later, the victim filed an amended notice of interlocutory appeal. In her memorandum in

14   support of her interlocutory appeal, the victim argues that the trial court erred in denying

15   her victim's rights claim. She asserts that, by requiring the state to obtain her Google

16   information on defendant's behalf, the trial court was "using the District Attorney's Office

17   as a conduit to obtain discovery which Defendant cannot get directly from the victim

18   given she has exercised her constitutional right not to provide such information."

19                 The prosecuting attorney and the Attorney General separately filed

20   responses to the victim's notice of interlocutory appeal and supporting memorandum,

21   essentially agreeing with her position. Both argue that the Electronic Communications

22   Privacy Act does not authorize the trial court to issue the discovery orders at issue and

                                                4
 1   that the trial court lacks authority to order the state, in effect, to conduct discovery for

 2   defendant.

 3                 In his response, defendant first asserts that this court lacks jurisdiction to

 4   address the merits of the victim's appeal because she failed to appeal within the time limit

 5   set by statute. Specifically, defendant argues that, under ORS 147.537(8), the victim was

 6   required to file her notice of interlocutory appeal within seven days of the issuance of the

 7   challenged order. He notes that, under ORS 147.530(5), an order may be issued either in

 8   writing or orally on the record. In this case, he argues, the victim challenges the trial

 9   court's order denying her victims' rights claim, which the trial court issued orally on the

10   record on April 6, 2012, and confirmed by written order that same day. Because the

11   victim did not file her notice of interlocutory appeal of that order until April 27, 2012,

12   defendant concludes, the appeal is untimely. Defendant also asserts -- for the first time

13   on appeal -- that, assuming that the court has jurisdiction, the victim waived the right to

14   complain about the discovery orders because she failed to file her claim in December

15   2011, when the trial court first entered the orders. In any event, he argues, the trial court

16   was authorized to order the state to conduct the requested discovery.

17                 The victim filed a reply memorandum responding to defendant's

18   jurisdictional challenge. She argues that ORS 147.530(5) requires a written order stating

19   the reasons for the trial court's decision to deny her request. Only upon entry of such a

20   written order, she contends, does the seven-day deadline for filing a notice of

21   interlocutory appeal begin to run. In this case, she asserts, the trial court did not enter a

22   written order with reasons for its decision until May 14, 2012; accordingly, her appeal is

                                                5
 1   timely.

 2                 We address only the parties' arguments concerning jurisdiction, because the

 3   issue is dispositive. We begin with a brief overview of the relevant statutory context,

 4   before turning to the statutes that pertain to the dispute over jurisdiction in this case. In

 5   1999, the voters enacted Article I, section 42, of the Oregon Constitution, granting certain

 6   rights to the victims of crimes. That section provides, in part, that crime victims have the

 7   right "to refuse an interview, deposition or other discovery request by the criminal

 8   defendant or other person acting on behalf of the criminal defendant." Or Const, Art I, §

 9   42(1)(c). It also authorizes the legislature to enact laws to effectuate its provisions. Id. §

10   42(3)(c). The legislature did so by enacting ORS 147.500 to 147.550. See State v.

11   Barrett, 350 Or 390, 393-94, 255 P3d 472 (2011) (setting out brief history of the

12   enactment of Article I, section 42, and ORS 147.500 to 147.550).

13                 Under those statutes, a victim who wishes to vindicate the rights set out in

14   Article I, section 42, may file a claim, ORS 147.515(1), on which the trial court may hold

15   a hearing, ORS 147.530. After the hearing, the trial court may either grant or deny the

16   relief that the victim has requested. ORS 147.530(4). But, either way, it must "issue an

17   order" containing its decision. Id.

18                 The statute sets out certain requirements for such an order. First, subject to

19   exceptions not relevant to this case, the order must "include the reasons relief was granted

20   or denied." ORS 147.530(5)(b). Second, the order must "[b]e in writing unless the order

21   is issued on the record in open court. If the court issues the order orally under this

22   paragraph, the court shall issue a written order as soon as practicable indicating whether

                                                6
 1   relief was granted or denied." ORS 147.530(5)(c). Third, the court "shall provide a copy

 2   of the order" to the victim, the prosecuting attorney, and the defendant, among others.

 3   ORS 147.530(6).

 4                 Appeal of such an order "shall be solely as provided" in the victims' rights

 5   statutes. ORS 147.535(1)(a). "The victim, the prosecuting attorney or any person against

 6   whom relief was ordered" may appeal. ORS 147.535(5). The appeal is initiated by the

 7   filing of a notice of interlocutory appeal "within seven days after the date the trial court

 8   issued the order being appealed." ORS 147.537(8)(a). Additionally, ORS

 9   147.537(11)(a)(A) provides that "[t]he timely filing of the original notice of interlocutory

10   appeal" is jurisdictional and may not be waived.

11                 Thus, in this case, the victim had seven days after "the trial court issued the

12   order being appealed," to file her notice of interlocutory appeal. Defendant argues that

13   the court issued the challenged order on April 6, 2012, when it orally announced its

14   decision and entered a confirming written minute order. The victim contends that the

15   court did not issue its order until it entered its later written order that included the reasons

16   for the court's decision; that, the victim argues, did not occur until May 14.

17                 Defendant is correct. First, ORS 147.537(8)(a) clearly refers to "issuance"

18   of the challenged order as the triggering event, not entry, as is sometimes the case in

19   other contexts. See, e.g., ORS 19.255(1) ("[A] notice of appeal must be served and filed

20   within 30 days after the judgment appealed from is entered in the register."). Second,

21   ORS 147.530(5)(c) specifically anticipates that the order may be issued orally, so long as

22   the court issues a written order "indicating whether relief was granted or denied" as soon

                                                7
 1   as practicable. That is precisely what the court did in this case on April 6, 2012.

 2                 The victim insists that the April 6, 2012, order was insufficient to trigger

 3   the statutory deadline for filing a notice of interlocutory appeal because it failed to

 4   include the reasons for the trial court's decision, as ORS 147.530(5)(b) requires. That

 5   argument is unavailing for at least two reasons.

 6                 First, that the order failed to include findings or reasons does not mean that

 7   the order did not "issue" within the meaning of ORS 147.537(8)(a) or that the deadline

 8   for filing the notice of interlocutory appeal was not triggered. See Pietz v. Del Mar

 9   Investment Co., 247 Or 468, 472-74, 431 P2d 275 (1967) (judgment that was entered

10   without required findings nevertheless triggered deadline for filing notice of appeal).

11                 Second, in any event, the statute simply does not state what the victim

12   contends, viz., that only a written order containing reasons triggers the deadline for filing

13   a notice of interlocutory appeal. As we have noted, ORS 147.530(5)(c) expressly

14   authorizes the court to issue its order orally "on the record in open court." To be sure, the

15   statute requires that the order must include "the reasons relief was granted or denied."

16   ORS 147.530(5)(b). But, given that the order may be issued orally, it is clear that the

17   reasons may be given orally, as well. That is confirmed by the fact that, when the court

18   does issue its order orally, the only written order that is required is one that "indicat[es]

19   whether relief was granted or denied." ORS 147.530(5)(c).2


            2
                    We do not decide whether the issuance of the oral order, by itself, suffices
     to trigger the seven-day deadline or whether the issuance of the confirming written order



                                                8
 1                 The Attorney General, although agreeing that the statute permits the court

 2   to issue an order orally in open court, contends that the trial court's attempt to do so in

 3   this case was ineffective because the court's stated reasons were too abbreviated. As we

 4   have noted, however, whether the order was supported by sufficient reasons does not

 5   necessarily mean that the order had not been issued within the meaning of ORS

 6   147.530(5)(c). Aside from that, the court's explanation of its reasons, while brief, was

 7   adequate; the court explained that its prior orders did not violate the victim's right to

 8   refuse discovery because they directed the state to obtain information from third parties,

 9   not the victim. That was sufficient.

10                 At oral argument, the prosecuting attorney argued that, even if the issuance

11   of an order on the record in open court might otherwise suffice to trigger the deadline for

12   filing a notice of interlocutory appeal, the trial court's April 6, 2012, order did not have

13   that effect in this case because the court neglected to provide her with a copy of the

14   written order, as provided in ORS 147.530(6). We are not persuaded.

15                 Nothing in the statute indicates that the legislature intended that providing a

16   copy of the order to any particular person would be a jurisdictional predicate for

17   appealing the order. To the contrary, the statute provides that issuance of the order -- not

18   additional notice of issuance -- is what triggers the seven-day deadline. ORS

19   147.537(8)(a). See State v. Ainsworth, 346 Or 524, 535, 213 P3d 1225 (2009) (under



     triggers the deadline. In this case, both events occurred the same day.




                                                9
 1   ORS 18.082(1), "entry of the judgment, not notice of entry" triggers the deadline for

 2   filing a notice of appeal); Far West Landscaping v. Modern Merchandising, 287 Or 653,

 3   655-56, 601 P2d 1237 (1979) (trial court lacked authority to re-enter judgment to

 4   artificially extend time for filing notice of appeal to account for lack of notice of entry of

 5   judgment).

 6                 In short, the victim had seven days from the trial court's issuance of its

 7   order denying her requested relief on April 6, 2012. The victim did not file her notice of

 8   interlocutory appeal until April 27, 2012. The appeal was untimely. The timely filing of

 9   the notice of interlocutory appeal is "jurisdictional and may not be waived." ORS

10   147.537(11)(a). Accordingly, this appeal must be dismissed.

11                 The interlocutory appeal is dismissed.




                                               10
 1                  DE MUNIZ, J., concurring.

 2                 I concur in the court's conclusion that we must dismiss this appeal for lack

 3   of jurisdiction. I write separately, however, to express my concern regarding the

 4   legislatively prescribed procedures to bring an interlocutory appeal to this court in a

 5   victims' rights case.

 6                 This is the fourth interlocutory appeal of an order involving crime victims'

 7   rights that this court has received since the voters adopted Article I, sections 42 and 43, of

 8   the Oregon Constitution in 1999. Of those four, three suffered from fatal jurisdictional

 9   defects and had to be dismissed. Only one was able to proceed to an opinion on the

10   merits.

11                 The first appeal, State v. Mann (SC S059297), was jurisdictionally

12   defective because the victim did not serve the notice of appeal on the prosecuting

13   attorney and the Attorney General in a manner calculated to ensure that it was received

14   on the same date that the notice of appeal was filed with this court. See ORS

15   147.537(8)(b) (so requiring); ORS 147.537(11)(a)(B) ("service of the notice of

16   interlocutory appeal within the time limits described in subsection (8) of this section" is

17   "jurisdictional and may not be waived or extended").

18                 The second notice of appeal, State v. Barrett (SC S059408), was

19   jurisdictionally defective because the victim had not timely served the Office of Public

20   Defense Services. See ORS 147.537(6)(h) (requiring service on "[t]he office of public

21   defense services established under ORS 151.216, if the defendant is represented by

22   appointed counsel"); ORS 147.537(8)(c) (with exceptions not applicable here, the notice

                                               1
 1   of appeal must be served so that it is received by the served party "no later than one

 2   judicial day after the notice [of appeal] is filed"); ORS 147.537(11)(a)(B) ("service of the

 3   notice of interlocutory appeal within the time limits described in subsection (8) of this

 4   section" is "jurisdictional and may not be waived or extended"). That notice of appeal

 5   was dismissed. Because this court had quickly issued an order to show cause regarding

 6   the issue, however, the victim still had time to file and serve a new notice of appeal. That

 7   third notice of appeal (SC S059423) proceeded to an opinion on the merits. State v.

 8   Barrett, 350 Or 390, 255 P3d 472 (2011).

 9                 The fourth appeal is the present case. As we have explained, it is

10   jurisdictionally defective because the notice of appeal was not filed within seven days

11   after the trial court had "issued" its order. See ORS 147.537(8)(a) (requiring notice of

12   appeal to be filed within that time frame); ORS 147.537(11)(a)(A) (time to file notice of

13   appeal is jurisdictional).

14                 Of the four interlocutory appeals of an order involving crime victims'

15   rights, then, three failed because procedural errors deprived this court of jurisdiction.

16   Only one case proceeded to an opinion on the merits, and that was simply and solely

17   because the victim had time to file a corrected and jurisdictionally proper notice of

18   appeal. Even though these appeals involve constitutional rights -- with all the importance

19   that the constitutional grant of those rights suggests -- we cannot ignore legislatively

20   prescribed limitations on the ability to appeal decisions involving them. See State v.

21   Endsley, 214 Or 537, 539, 331 P2d 338 (1958) (in civil and criminal cases, "[a]n appeal

22   is not a matter of absolute right, but a statutory privilege" (citations omitted)); Anderson

                                               2
 1   et al. v. Harju et al., 113 Or 552, 556, 233 P 848 (1925) ("The right of appeal is wholly

 2   statutory and the methods of procedure therein are such only as the statute provides.").

 3   See also ORS 147.535(1)(a) (appeal or review of orders involving crime victims' rights

 4   must be "solely as provided" by identified statutes).

 5                 In ORS 147.500 to 147.575, the legislature has faithfully attempted to

 6   create procedural mechanisms for victims to seek to enforce the rights created by Article

 7   I, sections 42 and 43, of the Oregon Constitution, while at the same time preserving the

 8   right of criminal defendants to, among other things, a speedy trial (Or Const, Art I, § 10:

 9   "justice shall be administered * * * without delay"). The legislature since has eased some

10   of the statutory restrictions on appeal: In the wake of this court's dismissal of Mann, the

11   legislature loosened the service requirements for the notice of appeal somewhat,

12   modifying ORS 147.537 to add a new subsection (20) that allows the notice of appeal to

13   be served by e-mail or by fax. Or Laws 2011, ch 659, § 4. Later events have shown,

14   however, that additional legislative attention is necessary. The existing scheme for

15   challenging trial court orders involving crime victims' rights apparently is unnecessarily

16   confusing to the bar and trial bench. When constitutional rights are too constrained by

17   procedural limitations, they effectively may become valueless.

18                 I concur.




                                               3
