concurring.
I concur in Justice Riggs’s opinion for the court, which vacates the sentence of death and remands the case for further proceedings.
The opinion correctly answers several questions that are likely to arise on remand if the state elects, under ORS 138.012(2)(a)(B), to conduct a new sentencing proceeding before a new sentencing jury. The questions that the court addresses focus principally on the evidence that the parties may offer in such a proceeding on remand.
The court’s opinion does not address another argument that defendant raises that, if sustained, would obviate the need for a new sentencing proceeding. Defendant urges this court to reconsider and overrule its decision in State v. Wagner, 309 Or 5, 786 P2d 93 (1990) (’Wagner IT). According to defendant, when these murders occurred in 1987, Oregon’s 1985 death penalty-statute was in effect and is applicable to this case. Defendant argues that that statute contained no provision requiring the factfinder to consider any mitigating circumstances regarding the murders. For that reason, defendant asserts, Oregon’s 1985 statute violated pertinent federal constitutional principles and does not authorize imposition of a sentence of death in this case. See Penry v. Lynaugh, 492 US 302, 109 S Ct 2934, 106 L Ed 2d 256 (1989) (holding that similar Texas statute did not authorize sentence of death, because it lacked provision requiring consideration of mitigation factors).
I previously have expressed the view that the court wrongly decided Wagner II and that the court should reconsider that decision. State v. Montez, 324 Or 343, 346-47 n 5, 927 P2d 64 (1996); State v. Pinnell, 319 Or 438, 449, 887 P2d 635 (1994) (Durham, J., dissenting). I adhere to that view. The reasoning that the court adopted in Wagner II is indefensible and warrants no deference under this court’s doctrine of stare decisis.
Wagner II, however, is not the last word on this subject. Since this court issued that decision, the legislature has amended ORS 138.012(2)(b) and ORS 163.150(l)(c)(B) to *466require the trial court to instruct the jury, in a sentencing proceeding on remand, to consider any mitigating circumstances offered in evidence, among other things. Defendant may argue that those legislative amendments occurred after the murders occurred, but that argument alone does not establish that the amendments are ex post facto laws or are inapplicable or invalid for some other reason.
The court is in no position to disregard the legislature’s later enactments unless the parties’ briefing demonstrates that the legislature has exceeded its authority or otherwise has failed to meet constitutional requirements. In regard to Wagner II, defendant must demonstrate not only that this court wrongly decided Wagner II, but also that the error entitles him to a different disposition notwithstanding the legislature’s later attempts to fix the problem. The parties’ briefing does not sufficiently address, and the court’s opinion does not decide, that question.
I agree with the court’s decision not to address whether the error in Wagner II requires a different result in this case. From this vantage point, the court cannot determine with certainty that the dispute over Wagner II is likely to arise on remand. If it does arise, then the parties should address in detail the issues discussed in this opinion.
I concur.