Background
Douglas Wright, a criminal defendant in Linn County, moved the circuit court to compel the state to provide him copies of discovery materials at no cost. The Linn County District Attorney’s Office had a policy of requiring defendants to pay for copies before handing them over. The circuit court denied the motion, and Wright petitioned the Oregon Supreme Court for a writ of mandamus. The court issued an alternative writ directing the circuit court either to vacate its order and compel free discovery or to show cause.
After the alternative writ issued, the state voluntarily provided the discovery materials without charge and moved the circuit court to vacate its denial order, which the court did. The state then moved the Supreme Court to dismiss the mandamus proceeding as moot. Wright agreed the case was moot but argued the court should exercise its discretion under ORS 14.175 to decide the merits, given the district attorney’s unchanged fee policy and the likelihood that future cases would similarly evade review. The Supreme Court denied the state’s dismissal motion and proceeded to briefing and oral argument.
Wright’s central statutory argument relied on ORS 135.815 and, critically, on the current version of ORS 135.805(2) — amended by Senate Bill 751 in 2021, effective January 1, 2022 — which defines “disclose” to mean providing “a copy” of materials. Both parties initially assumed that version applied. The court sua sponte sought supplemental briefing on the question because Wright’s indictment charged offenses alleged to have occurred between 2009 and 2014, all predating SB 751’s effective date.
The Court’s Holding
The court held that SB 751’s applicability provision — stating the amendments “apply to offenses alleged to have occurred on or after the effective date of this 2021 Act” — means the relevant date is the alleged crime commission date, not the charging date. Because every count in Wright’s indictment alleged offenses occurring before January 1, 2022, the 2021 amendments do not govern his case. Under the pre-amendment version of ORS 135.805(2), “disclose” means only affording the adverse party “an opportunity to inspect or copy” materials — not an obligation to furnish copies.
Because Wright’s primary argument depended entirely on the current version of ORS 135.805(2), and that version does not apply to his case, the court declined to exercise its discretion under ORS 14.175 to adjudicate the underlying merits — namely, whether the state may charge for discovery copies and whether it may withhold them pending payment. The court dismissed the alternative writ of mandamus.
Although the case was otherwise justiciable as moot under ORS 14.175 — the district attorney’s unchanged fee policy makes the issue capable of repetition and likely to evade review — the court treated the inapplicability of the controlling statute as a sufficient reason to withhold discretionary adjudication. It expressly left open both the charging-for-copies question and the withholding-pending-payment question.
Key Takeaways
- SB 751’s (2021) amended definition of “disclose” — requiring parties to provide a physical copy of discovery materials — applies only to offenses whose alleged crime commission date falls on or after January 1, 2022; cases charging pre-2022 conduct are governed by the prior definition, which required only an opportunity to inspect or copy.
- The phrase “alleged to have occurred” in SB 751’s applicability clause refers to the alleged commission date stated in the charging instrument, not the date the charge was filed; reading it otherwise would render statutory text surplusage in violation of Oregon’s rule against surplusage.
- The Oregon Supreme Court explicitly declined to resolve whether a district attorney may charge defendants for discovery copies or withhold copies pending payment — those questions remain open under both the current and prior versions of the discovery statutes.
- A moot mandamus case may satisfy ORS 14.175’s capable-of-repetition/likely-to-evade-review standard even if the government could theoretically let future cases reach the merits; but the court retains discretion to decline adjudication when the primary legal premise underlying the petition does not apply to the relator’s case.
Why It Matters
The decision leaves unresolved a significant practical question for Oregon criminal practitioners: whether district attorneys may condition the delivery of discovery on payment, and whether withholding copies pending payment is lawful. The Linn County DA’s fee-for-copies policy remains in place, and the court’s analysis confirms that the same mootness dynamics will likely recur — meaning a future defendant whose alleged offenses postdate January 1, 2022 will need to litigate the issue before the court will reach the merits.
For cases involving pre-2022 offenses, defense attorneys should be aware that the state’s discovery obligation under ORS 135.815 may be satisfied by affording access to inspect or copy materials rather than by affirmatively providing copies. The decision also offers a clear rule of statutory construction for Oregon criminal practitioners: when the legislature conditions a statute’s applicability on when an offense was “alleged to have occurred,” Oregon courts will look to the charged commission date in the indictment, not to when the indictment was filed.