Gillette v. Cain ( 2020 )

287
418
Gillette v. Cain 306 2,
September Or2020
App
Submitted January 28, reversed and remanded September 2, 2020
KEITH GILLETTE,
Petitioner-Appellant,
v.
Brad CAIN,
Superintendent,
Snake River Correctional Institution,
Defendant-Respondent.
Malheur County Circuit Court
17CV20510; A167484
474 P3d 442
In 1987, when petitioner was a juvenile, he was charged with aggravated mur-
der. After a waiver hearing in juvenile court, he was tried and convicted as an
adult. He was sentenced to a mandatory life sentence with a possibility that, after
a fixed term of years and subject to the conditions of ORS 163.105 (1987), the sen-
tence could be converted to a life sentence with the possibility of parole. In a peti-
tion for post-conviction relief, petitioner argued that the sentence was unconsti-
tutionally disproportionate under Miller v. Alabama, 567 US 460, 132 S Ct 2455,
183 L Ed 2d 407 (2012). The post-conviction court denied relief. Petitioner appeals
that decision, relying on State v. Link, 297 Or App 126, 441 P3d 664, rev allowed,
365 Or 556 (2019), which held that, under Miller, the state cannot impose its most
severe penalties against a juvenile offender without consideration of youth at the
time of sentencing. The superintendent argues that petitioner’s youth was ade-
quately considered in the hearing in juvenile court to waive jurisdiction and try
him as an adult. Held: Because a pretrial waiver hearing is not the equivalent of
consideration of youth at sentencing, it does not prevent the risk of a constitution-
ally disproportionate sentence. Under Hardegger v. Amsberry, 305 Or App 726,
473 P3d 576 (2020), the determination that such a sentence is unconstitutional is
substantive and of retroactive application to petitioner’s sentence.
Reversed and remanded.
Lung S. Hung, Judge.
Jedediah Peterson filed the brief for appellant. Also on
the brief was O’Connor Weber LLC.
Jeff J. Payne, Assistant Attorney General, filed the brief
for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
288 Gillette v. Cain
DeVORE, P. J.
Reversed and remanded.
Mooney, J., concurring.
Cite as 306 Or App 287 (2020) 289
DeVORE, P. J.
In 1987, petitioner was a juvenile when he was
charged with aggravated murder. After a waiver hearing
in juvenile court, he was tried and convicted as an adult.
He was sentenced to a mandatory term of life with a possi-
bility, after a fixed term of years, to the conversion to a life
sentence with the possibility of parole. ORS 163.105 (1987).1
In a petition for post-conviction relief, petitioner argues that
the sentence was unconstitutionally disproportionate under
Miller v. Alabama, 567 US 460, 132 S Ct 2455, 183 L Ed
2d 407 (2012). The post-conviction court granted summary
judgment in favor of the superintendent and entered a judg-
ment denying relief.
Petitioner appeals that decision, relying on our
recent opinion, State v. Link, 297 Or App 126, 441 P3d 664,
rev allowed, 365 Or 556 (2019), in which we held that, under
Miller, the state cannot impose its most severe penalties
against a juvenile offender without consideration of his youth
at the time of sentencing. The superintendent argues that
petitioner’s youth was adequately considered in the hearing
in juvenile court to waive jurisdiction and try him as an
adult. We conclude that, because a pretrial waiver hearing
is not the equivalent of consideration of youth at sentencing,
it does not prevent the risk of a constitutionally dispropor-
tionate sentence. Therefore, we reverse and remand.
We review the post-conviction court’s entry of sum-
mary judgment to determine whether there was a genuine
issue of material fact and whether the superintendent, as
the moving party, was entitled to prevail as a matter of law.
Washington v. Johnson, 165 Or App 578, 581, 997 P2d 263,
rev den, 330 Or 553 (2000) (describing the standard under
ORCP 47 C).
The facts are procedural and undisputed. In 1987,
petitioner committed aggravated murder when he was 17
years old. He was charged with that crime as a juvenile,
1
ORS 163.105 (1987) amended by Or Laws 1989, ch 720, § 1; Or Laws 1991,
ch 126, § 8; Or Laws 1995, ch 421, § 2; Or Laws 1999, ch 59, § 31; Or Laws 1999,
ch 782, § 5; Or Laws 2007, ch 717, § 1; Or Laws 2009, ch 660, § 6; Or Laws 2015,
ch 820, § 45; Or Laws 2019, ch 634, § 27. We refer to the 1987 version of the stat-
ute throughout this opinion.
290 Gillette v. Cain
and, after a waiver hearing, was remanded to be tried as
an adult, pursuant to former ORS 419.533 (1987), repealed
by Oregon Laws 1993, chapter 33, section 373. A jury found
him guilty, and the court sentenced him to life imprisonment
pursuant to ORS 163.105 (1987).2 In 1988, petitioner was
granted post-conviction relief, and, in 1991, he was retried
and again found guilty and sentenced to life imprisonment.
Under the terms of ORS 163.105 (1987), petitioner
could seek to convert his life sentence into a life sentence eli-
gible for parole after a minimum term of 30 years in prison
before any form of release. Such a sentence would later be
understood to mean that petitioner could seek to convert
his sentence to a life sentence with the possibility of parole
after 20 years. Janowski/Fleming v. Board of Parole, 349
Or 432, 446-53, 245 P3d 1270 (2010).3 Convicted of aggra-
vated murder for an offense in 1987, petitioner did not qual-
ify for a second-look hearing, which would have afforded the
possibility of an earlier release. See ORS 420A.203(1)(a)(A)
(2001), amended by Or Laws 2019, ch 634, § 22 (eligibility for
second look).
Decades passed. In 2012, the United States Supreme
Court decided Miller, concluding that, for homicide, a man-
datory sentence of life without parole is unconstitutionally
excessive for all but the rare juvenile offender whose crime
reflects irreparable corruption. 567 US at 460. Soon after,
the Court determined that Miller’s holding represented a
substantive rule of constitutional law to which states must
give retroactive effect. Montgomery v. Louisiana, ___ US
___, ___, 136 S Ct 718, 734, 193 L Ed 2d 599 (2016).
In 2017, petitioner filed this successive petition
for post-conviction relief asserting that, under Miller, his
sentence violates the Eighth Amendment to the United
States Constitution and Article I, section 16, of the Oregon
Constitution. The superintendent moved for summary
2
Petitioner was also charged with and convicted of first-degree burglary,
ORS 164.225 (1987), amended by Or Laws 2003, ch 557, § 10. For that crime, he
received a 20-year sentence to be served consecutively. That sentence was inde-
terminate under ORS 161.605, and it is not at issue in this appeal.
3
Later legislation amended ORS 163.105 to provide that an inmate could
request such a murder review hearing after 25 years. Or Laws 1995, ch 421, § 1.
Later yet, that period was extended to 30 years. Or Laws 1999, ch 782, § 5.
Cite as 306 Or App 287 (2020) 291
judgment. The post-conviction court granted that motion.
It observed that “Miller simply makes unconstitutional life
without parole,” and that petitioner’s sentence permitted
“the possibility of parole after 30 years.” The court con-
cluded that “Miller just does not address those issues, does
not extend that far.” The court entered a judgment denying
relief.
Petitioner appeals. He assigns error to the court’s
decision to grant summary judgment, challenging the court’s
conclusion regarding the constitutionality of the sentencing
statute. Petitioner argues that Miller requires the state to
provide him, as a juvenile offender, a meaningful opportu-
nity to obtain release based on his demonstrated maturity
and rehabilitation. Petitioner also cites Link, arguing that
he “was sentenced to essentially the same sentence pursu-
ant to the same sentencing scheme that this court declared
unconstitutional in Link.” He contends that Link shows
that the post-conviction court was incorrect in its conclu-
sion regarding Miller’s inapplicability. The superintendent
responds that petitioner suffered no constitutional violation
under Miller and Link, because petitioner’s waiver hearing
into adult court satisfied the procedural requirement of tak-
ing account of youth.4
To frame the parties’ arguments, we describe the
context in which Miller and Link arises. The Eighth
Amendment to the United States Constitution prohibits
“cruel and unusual punishments.” That provision protects
against sentences that are disproportionate. Montgomery,
___ US at ___, 136 S Ct at 732. As relevant here, the United
States Supreme Court has declared “certain punishments
disproportionate when applied to juveniles.” Id. In Miller,
the Court ended the mandatory sentencing of juveniles to
life in prison without the possibility of parole because it
“poses too great a risk of disproportionate punishment” by
“making youth (and all that accompanies it) irrelevant to
imposition of that harshest prison sentence.” 567 US at 480.
4
The superintendent asserts two additional arguments, both of which
we have addressed and rejected since initial briefing in the current case. See
Hardegger v. Amsberry, 305 Or App 726, 728, 473 P3d 576 (2020) (concluding
that Link applies retroactively); Link, 297 Or App at 154-56 (concluding that the
murder review hearing, in its current form, cannot cure a Miller violation).
292 Gillette v. Cain
The Court determined that “a lifetime in prison is a dispro-
portionate sentence for all but the rarest of children, those
whose crimes reflect ‘irreparable corruption.’ ” Id. at 479.
Consideration of “how children are different, and how those
differences counsel against irrevocably sentencing them to a
lifetime in prison,” is required. Id. at 480. Before condemn-
ing a juvenile to die in prison, the sentencer must consider
the juvenile’s “diminished culpability and heightened capac-
ity for change.” Id. at 479-80.
In Link, we determined that Oregon’s scheme for
sentencing juveniles convicted of aggravated murder was
unconstitutional under Miller. In that case, the defendant
had committed aggravated murder as a minor. He was auto-
matically tried and convicted in adult court, and he received
a life sentence, 30 of years of which he would serve before he
could seek eligibility for any sort of release. We held that,
under Miller, courts must consider youth before imposing
the state’s “most severe penalties,” which included that life
sentence. Link, 297 Or App at 134. We said that “Eighth
Amendment proportionality imposes a positive duty—a
requirement upon the sentencer before imposing a severe
sentence—to consider the lessened culpability of a juvenile
offender and the lesser ‘likelihood that a juvenile offender
forever will be a danger to society.’ ” Id. at 135 (quoting
Montgomery, ___ US at ___, 136 S Ct at 733).
We concluded that the statutory scheme under which
the Link defendant received his sentence failed that pro-
cedural obligation. Id. at 158. We highlighted the ways in
which the system had systematically eliminated consider-
ation of youth from the criminal process: First, Measure 11
(1994) eliminated the waiver hearing for juveniles 15, 16,
and 17 years old, mandating that they be tried as adults,
ORS 137.707(1); second, a conviction for aggravated murder
carried with it a mandatory penalty of life imprisonment,
ORS 163.105; third, such juvenile offenders were ineligible
for a second-look hearing, which would have afforded an
opportunity for an earlier release, ORS 420A.203; finally,
the eventual murder review hearing, ORS 163.105(2), failed
to consider youth properly and, coming 30 years into the
sentence, would occur too late to do so meaningfully. Link,
297 Or App at 138, 149. We recognized that “a sentencing
Cite as 306 Or App 287 (2020) 293
scheme that dictates such a severe sentence be applied to
a juvenile defendant, without regard for the qualities of
youth, runs afoul of Miller.” Id. at 157. We concluded that
Oregon’s sentencing scheme for aggravated murder violates
the Eighth Amendment. Id. at 158. We vacated the defen-
dant’s sentence and remanded for resentencing. Id.
After those precedents, this case reduces to the
question of whether the process of waiving a juvenile to adult
court satisfies the requirement of Miller and Link that the
sentencer consider youth before imposing the state’s most
severe penalties. Petitioner’s sentence, and the process for
imposing it, nearly mirrors that which we deemed unconsti-
tutional in Link: Petitioner was a minor when he committed
aggravated murder; he was tried in adult court; he received
a mandatory sentence of life in prison, of which he was to
serve a minimum of 30 years; he was not automatically eli-
gible for parole consideration, but could undertake to seek,
through the murder-review process, a conversion of his life
sentence into one that would eventually permit release; and
he would receive no second look hearing like other juvenile
offenders. The only distinction of any significance is peti-
tioner’s waiver to adult court; the Link defendant was auto-
matically charged and tried in adult court without a waiver
proceeding. But for that difference, petitioner’s case would
be indistinguishable from Link, and Link would require
ready reversal. As a consequence, this case requires that
we determine whether the waiver procedure serves as an
adequate substitute for consideration of youth at sentencing,
such that petitioner’s sentence could be found to meet the
standards of the Eighth Amendment.
Miller answered that very question in the negative.
The holding in Miller was predicated, in significant part,
on the foundational principle that certain sentences require
an individualized evaluation of the offender and his circum-
stances at the sentencing stage. In reaching that conclusion,
the Court indicated that a waiver hearing would not permit
the inquiry necessary to fully consider the juvenile’s youth
and related characteristics, due to the different information
and questions before the court at that early point in the pro-
ceedings. 567 US at 487-89.
294 Gillette v. Cain
To explain, we recount that Miller drew from two
lines of precedent in determining that, for juveniles, a man-
datory sentence of life without parole was unconstitutional.
The first involved “categorical bans on sentencing practices
based on mismatches between the culpability of a class of
offenders and the severity of a penalty.” Id. at 470. The Court
relied on Roper v. Simmons, 543 US 551, 125 S Ct 1183, 161
L Ed 2d 1 (2005) (prohibiting the death penalty for youth),
and Graham v. Florida, 560 US 48, 130 S Ct 2011, 176 L Ed
2d 825 (2010) (prohibiting life without parole for youth who
commit nonhomicide offenses). The Court observed that,
“[b]ecause juveniles have diminished culpability and greater
prospects for reform * * * they are less deserving of the
most severe punishments.” Miller, 567 US at 471 (quoting
Graham, 560 US at 68). Because “the distinctive attributes
of youth diminish the penological justifications” for impos-
ing life without parole, such sentences are generally unsuit-
able for juvenile offenders. Id. at 472.
Of equal importance was the need for individualized
deliberation at the sentencing stage. Miller relied greatly on
a second line of precedents which “prohibited mandatory
imposition of capital punishment.” Id. at 470. Those cases
made mandatory schemes problematic, because they “gave
no significance to the character and record of the individ-
ual offender or the circumstances of the offense, and [they]
exclude[ed] from consideration” the “possibility of compas-
sionate or mitigating factors.” Id. at 475 (brackets in original;
internal citations and quotation marks omitted). From those
principles came the requirement that “sentencing authori-
ties [must] consider the characteristics of a defendant and
the details of his offense before sentencing him to death.”
Id. at 470. That “individualized sentencing” is necessary to
ensure that “defendants have an opportunity to advance,
and the judge or jury a chance to assess, any mitigating
factors,” so that the “penalty is reserved only for the most
culpable defendants committing the most serious offense.”
Id. at 475-76. Along those lines, the Court insisted “that a
sentencer have the ability to consider the mitigating quali-
ties of youth.” Id. at 476 (internal quotation marks omitted).
The Court concluded that “the confluence of [the]
two lines of precedent leads to the conclusion that mandatory
Cite as 306 Or App 287 (2020) 295
life-without-parole sentences for juveniles violate the Eighth
Amendment.” Id. at 470. “Graham, Roper, and [the] individ-
ualized sentencing decisions make clear that a judge or jury
must have the opportunity to consider mitigating circum-
stances before imposing the harshest possible penalty for
juveniles.” Id. at 489. The Court explained:
“Mandatory life without parole for a juvenile precludes
consideration of his chronological age and its hallmark
features—among them, immaturity, impetuosity, and fail-
ure to appreciate risks and consequences. It prevents tak-
ing into account the family and home environment that
surrounds him—and from which he cannot usually extri-
cate himself—no matter how brutal or dysfunctional. It
neglects the circumstances of the homicide offense, includ-
ing the extent of his participation in the conduct and the
way familial and peer pressures may have affected him.
Indeed, it ignores that he might have been charged and
convicted of a lesser offense if not for incompetencies asso-
ciated with youth—for example, his inability to deal with
police officers or prosecutors (including on a plea agree-
ment) or his incapacity to assist his own attorneys. And
finally, this mandatory punishment disregards the possi-
bility of rehabilitation even when the circumstances most
suggest it.”
Id. at 477-78 (internal citations omitted). For those reasons,
a critical component of Miller was the requirement that the
sentencer carefully consider the juvenile’s particular char-
acteristics and circumstances, rather than automatically
impose a rigid and severe one-size-fits-all sentence.
The Court, in Miller, specifically addressed whether
the pretrial process of waiving a juvenile into adult court
satisfied the procedural requirement of individualized con-
sideration of youth at sentencing. The Court determined
that it did not. Given the importance, we quote at length:
“Almost all jurisdictions allow some juveniles to be tried
in adult court for some kinds of homicide. But most States
do not have separate penalty provisions for those juvenile
offenders. Of the 29 jurisdictions mandating life without
parole for children, more than half do so by virtue of gen-
erally applicable penalty provisions, imposing the sentence
without regard to age. * * * As in Graham, we think that
underscores that the statutory eligibility of a juvenile
296 Gillette v. Cain
offender for life without parole does not indicate that the
penalty has been endorsed through deliberate, express,
and full legislative consideration. * * *
“Nor does the presence of discretion in some jurisdic-
tions’ transfer statutes aid the States here. * * *
“Even when States give transfer-stage discretion to
judges, it has limited utility. First, the decisionmaker
typically will have only partial information at this early,
pretrial stage about either the child or the circumstances
of his offense. Miller’s case provides an example. As noted
earlier, the juvenile court denied Miller’s request for his
own mental-health expert at the transfer hearing, and
the appeals court affirmed on the ground that Miller was
not then entitled to the protections and services he would
receive at trial. But by then, of course, the expert’s testi-
mony could not change the sentence; whatever she said in
mitigation, the mandatory life-without-parole prison term
would kick in. The key moment for the exercise of discre-
tion is the transfer—and as Miller’s case shows, the judge
often does not know then what she will learn, about the
offender or the offense, over the course of the proceedings.
“Second and still more important, the question at
transfer hearings may differ dramatically from the issue
at a post-trial sentencing. Because many juvenile systems
require that the offender be released at a particular age or
after a certain number of years, transfer decisions often
present a choice between extremes: light punishment as a
child or standard sentencing as an adult (here, life without
parole). In many States, for example, a child convicted in
juvenile court must be released from custody by the age of
21. Discretionary sentencing in adult court would provide
different options: There, a judge or jury could choose, rather
than a life-without-parole sentence, a lifetime prison term
with the possibility of parole or a lengthy term of years. It
is easy to imagine a judge deciding that a minor deserves a
(much) harsher sentence than he would receive in juvenile
court, while still not thinking life-without-parole appro-
priate. For that reason, the discretion available to a judge
at the transfer stage cannot substitute for discretion at post-
trial sentencing in adult court—and so cannot satisfy the
Eighth Amendment.”
Id. at 486-89 (first emphasis in original; second emphasis
added; internal citations and quotation marks omitted). In
Cite as 306 Or App 287 (2020) 297
short, a sentence of life without parole is unconstitutional
when mandatorily imposed upon a juvenile offender without
consideration of youth at sentencing, regardless of whether
the court had waived the child into adult court earlier in the
proceedings.
Link did not conclude otherwise. It never held that
the waiver hearing, which comes early in proceedings, could
replace consideration of youth at sentencing, which comes
after full development of a record. Link traced the history
of juvenile court jurisdiction, and changes to the waiver
process, to illustrate that Measure 11 explicitly aimed to
remove youth from the entire adjudicatory and sentencing
equation. We examined how the waiver hearing had been
“extinguished for some juveniles charged with the most seri-
ous crimes” in order to support our overarching thesis: “The
clear intent of Measure 11 was to remove the considerations
of the characteristics of youth for juveniles accused of the
most serious crimes and to limit the range of sentencing
options to the same penalties that could be imposed on an
adult offender.” Link, 297 Or App at 142-44. Given the num-
ber of statutes compounding the problem, the elimination
of the waiver procedure was not, in and of itself, the con-
stitutional defect in Link. Nor would existence of a waiver
process alone be the cure. Rather, elimination of the waiver
process was just one of a number of provisions that demon-
strated a broad problem in how the state dealt with juvenile
offenders—systematically treating them like adults, with
no regard for their youth.
In Link, we stressed the importance of having the
sentencer assess juvenile’s unique situation and attributes.
We indicated that “the normal procedure was to permit the
sentencer to consider youth.” Id. at 155 (emphasis in origi-
nal). That is because “ ‘Miller mandates that a sentencer fol-
low a certain process—considering an offender’s youth and
attendant characteristics.’ ” Id. (quoting Montgomery, ___
US at ___, 136 S Ct at 734) (emphasis in Link; brackets and
ellipses omitted). That emphasis on the centrality of the sen-
tencer means that pretrial proceedings cannot, under Miller
and Link, serve as an adequate substitute for individualized
consideration of youth at sentencing.
298 Gillette v. Cain
In sum, we reiterate that Miller and Link require
that the sentencer consider the offender’s youth before
imposing a life sentence—one of the state’s most severe pen-
alties. We conclude that the process of waiving petitioner to
adult court was no substitute for the requirement of indi-
vidualized sentencing, where the record is more fully devel-
oped and petitioner is freer to use it. As in Link, petitioner’s
sentence violates the Eighth Amendment. As in Hardegger
v. Amsberry, 305 Or App 726, 473 P3d 576 (2020), that viola-
tion entitles petitioner to post-conviction relief. Accordingly,
we reverse and remand.
Reversed and remanded.
MOONEY, J., concurring.
This court’s recent decisions in State v. Link, 297
Or App 126, 441 P3d 664, rev allowed, 365 Or 556 (2019),
Hardegger v. Amsberry, 305 Or App 726, 473 P3d 576 (2020),
and Case v. Cain, 306 Or App 21, 474 P3d 415 (2020), seem
to compel the result the majority arrives at today. And,
because we are bound by our own precedent, I must con-
cur in that result. I write separately because, in my view,
this quartet of cases (Link, Hardegger, Case, and now this
case, Gillette) extends the limited constitutional principles
of Miller1 and Montgomery2 to cases where those principles
were not intended to, and should not, apply. My purpose is
not to offer a hollow “flood-gates” or “slippery slope” proph-
esy. My purpose is to highlight that which time has already
revealed: This court is moving as yet unchecked, case after
case, more and more distal to the very holdings we purport
to follow while we, instead, create new law.
Miller held that, for juvenile offenders, a sentence
of life without any chance of parole is unconstitutionally
disproportionate under the Eighth Amendment to the
United States Constitution and, therefore, may only rarely
be imposed on juvenile offenders. Miller also established a
procedural rule that the sentencing court must consider the
offender’s youth at the time of sentencing in cases where the
1
Miller v. Alabama, 567 US 460, 132 S Ct 2455, 183 L Ed 2d 407 (2012).
2
Montgomery v. Louisiana, ___ US ___, 136 S Ct 718, 193 L Ed 2d 599 (2016).
Cite as 306 Or App 287 (2020) 299
juvenile offender could be sentenced to life without chance of
parole. Montgomery made that rule retroactive.
We extended Miller, first with Link, to a juvenile
offender sentenced to life with the possibility of parole after
30 years. We did that despite Montgomery’s clarification
that the Miller requirement to consider a juvenile offend-
er’s youth at the time of sentencing is limited to those
cases in which a child could be “condemn[ed] * * * to die in
prison.” Montgomery v. Louisiana, ___ US ___, ___, 136 S Ct
718, 726, 193 L Ed 2d 599 (2016). And, we did that despite
Montgomery’s declaration that the remedy for a Miller vio-
lation is allowing the juvenile offender to be considered for
parole rather than resentencing him. That possibility was
already built into the sentence at issue in Link—life with
the possibility of parole after 30 years. A teenager sentenced
to life with the possibility of parole in 30 years enjoys the
possibility of release when the offender is in his forties—
hardly a sentence to die in prison.
We then extended Miller and Montgomery to a juve-
nile offender sentenced to life with the possibility of parole
after 25 years in Hardegger. Hardegger thus bumps the
reach of Miller/Montgomery another five years vis-à-vis Link
and, significantly, it does so in a post-conviction relief case
many, many years after the conviction and sentence became
final. Case follows Hardegger with lock-step precision. Today
we extend the rule established in Miller and Montgomery
even farther, concluding “that, because a pretrial waiver
hearing is not the equivalent of consideration of youth at
sentencing, it does not prevent the risk of a constitutionally
disproportionate sentence.” 306 Or App at 289.
Miller and Montgomery interpreted the Eighth
Amendment to the United States Constitution. Those cases
were not decided under Article I, section 16, of the Oregon
Constitution. While we are bound to follow United States
Supreme Court cases interpreting the federal constitution,
there is a question as to whether our cases extending Miller
and Montgomery will be upheld. Because that question has
not yet been resolved, I concur only in the result reached by
the majority today.