specially concurring.
I concur in the result reached by the majority. I disagree, however, with the lengthy discussion by the majority of the reasons why the denial of defendant’s demand for a preliminary hearing did not violate his rights under Article I, Section 20 of the Oregon Constitution.
*247To anyone reading the majority opinion it would appear that this problem was the primary focus of the contentions by the parties on the appeal of this case. In defendant’s brief to the Court of Appeals, however, defendant did not cite Article I, Section 20 of the Oregon Constitution, much less discuss in any detail its application in this case, but contended only that the disparity between the procedural rights afforded defendants charged by information and by indictment resulted in “constitutionally infirm inequities,” citing the California case of Hawkins v. Superior Court, 150 Cal Rptr 435, 586 P2d 911 (1978).1
In defendant’s petition for review to this court defendant not only did not cite Article I, Section 20, but appears to have abandoned the contention that his rights under Article I, Section 20 of the Oregon Constitution were violated. Thus, defendant’s contention in this court is that:
“The present constitutional framework in Oregon violates federal equal protection and due process guarantees.
“It is axiomatic that State constitutional provisions cannot be violative of federal constitutional rights any more than State legislative enactments can.
<<* * * * *
“This State’s failure to afford procedural protections to Defendants is as much a denial of federal equal protection guarantees as the denial of substantive rights under the law.”
At the time of oral argument in this case, defendant’s counsel was specifically asked whether he relied upon Article I, Section 20. His reply was that he relied upon federal equal protection and did not rely upon Article I, Section 20. In any event, he made no attempt to do so in the course of his argument before this court.
*248On this record it is interesting, to say the least, that the opinion by the majority has disposed of defendant’s contention that the denial of a preliminary hearing violated his federal constitutional rights to equal protection in one paragraph (291 Or at 243-44), while devoting eight pages to a discussion of defendant’s rights under Article I, Section 20 of the Oregon Constitution (291 Or at 235-243).
In the course of that lengthy discussion, the majority not only traces the development of the caselaw under Article I, Section 20, but undertakes an analysis of that constitutional provision and its application in various situations including, but not limited to, the problem presented in this case — all without the benefit of the adversary process and despite the fact that no such analysis was contended for by any party to this case.
An example may be found in that portion of the majority analysis of Article I, Section 20 as that analysis relates to defendant’s demand for a preliminary hearing when the prosecution is by indictment, rather than by information. There the majority discusses the effect of the fact that the discretion accorded to prosecuting attorneys to charge either by information or by indictment is also based upon provisions of the Oregon Constitution, Article VII, Section 5 (291 Or at 243). Indeed, the fact that such a procedure is expressly authorized by Article VII, Section 5 may well be the reason why defendant chose to abandon reliance upon the “equal privilege” provisions in the Oregon Constitution, Article I, Section 20, and to rely solely upon the “equal protection” provisions of the Federal Constitution.
Nevertheless, the majority undertook to decide this important question by its holding in a footnote that:
“The fact that a procedure, a power, or a program is itself stated in the constitution, as are the provisions for indictment and information, does not relieve them from compliance with other constitutional standards unless these are expressly excluded. There are many such provisions placed in the Oregon Constitution (e.g. sale of alcoholic liquor, art I, § 39, educational funding, art VIII, §§ 2-5, and the bonding authorities of article XI-A through H) that are not thereby placed beyond the guarantees in article I, the Bill of Rights.” (291 Or at 235, n. 5).
*249This may or may not be correct, but it is a holding made without benefit of the adversary process and one that may have widespread effect. Suppose, as an example, that the people of Oregon adopt by initiative a constitutional amendment providing either for mandatory minimum sentences or for a death penalty. Would such an amendment to the Oregon Constitution be invalid under the holding by the majority in this case because it conflicts with Article I, Section 15, which provides that “[l]aws for the punishment of crime shall be founded on the principles of reformation, and not of vindictive justice”?
The majority opinion, in its lengthy discussion and analysis of Article I, Section 20, without benefit of the adversary process, is reminiscent of the recent opinion in Sterling v. Cupp, 290 Or 611, 625 P2d 123 (1981), joined by two other members of this court, in which the writer of that opinion undertook to decide that case upon the basis of another provision of the Oregon Constitution and on a theory completely different than the theory on which the case had been tried and briefed by the parties on appeal and petition for review.
In a specially concurring opinion in that case it was said, after citing decisions of the court holding that it will not decide a case upon a theory different from the theory on which the case was tried, that:
“If the adversary process, which is basic to our system of jurisprudence, is to be respected, the fact that this court is now a court of review, rather than a court of direct appeal, cannot properly justify a different result because to hold to the contrary would leave the parties free on petitions for review to propose, if not demand, that this court reverse either the trial court or the Court of Appeals for reasons based upon theories completely different from the theory upon which the case was both tried and appealed to the Court of Appeals.” (Sterling v. Cupp, 290 Or at 635).
Finally, I must concur in the result reached by the majority by a specially concurring opinion because otherwise I would be acquiescing in the long delay in the decision of this case. This is another case which was “assigned but unwritten” for approximately six months before a proposed opinion was written and one which decides a case primarily upon the basis of an elaborate discussion and analysis of a *250provision of the Oregon Constitution which was not relied upon or discussed by the parties either on appeal to the Court of Appeals or on petition for review to this court.2
This court has previously held in Megdal v. Board of Commissioners, 288 Or 293, 296, 605 P2d 273 (1980), that:
“* * * Constitutional claims should identify the provisions of the constitution, state and federal, that the governmental action is said to contravene and should show the relevance of these provisions to the claim.”
To the same effect, see Rogers v. Department of Revenue, 284 Or 409, 412 n. 2, 587 P2d 91 (1978), and Fifth Avenue Corp. v. Washington Co., 282 Or 591, 594 n. 2, 581 P2d 50 (1978). See also Linde, Without Due Process, 49 Or L Rev 125, 142-43, 183 (1969).
Indeed, the majority in this case recognizes that “defendant has made no effort to show that the handling of his case violated those principles,” i.e., the “principles” of Article I, Section 20 of the Oregon Constitution (291 Or at 246).
See concurring opinion in Sterling v. Cupp, 290 Or 611, 625 P2d 123 (1981). Cf. concurring opinions in Ore-Ida Foods, Inc. v. Indian Head Cattle Co., 290 Or 909, 627 P2d 469 (1981); State v. Quinn, 290 Or 383, 623 P2d 630 (1981); Haynes v. Burks, 290 Or 75, 619 P2d 632 (1980); and State v. Classen, 285 Or 221, 590 P2d 1198 (1979).