concurring.
The lead opinion is probably correct that ORS 131.125(2), as applied to revive defendant’s previously time-barred prosecution, violates due process. However, I do not reach that question, because the trial court’s judgment can and should be affirmed on state constitutional grounds. See State v. Kennedy, 295 Or 260, 262, 666 P2d 1316 (1983).
It is well established that Oregon courts have independent responsibility to construe the Oregon Constitution, and that the decision whether to follow federal precedents must be made on a case-by-case basis. See, e.g., State v. Caraher, 293 Or 741, 748, 643 P2d 942 (1982). The ere post facto clause of the Oregon Constitution traditionally has been construed similarly to the parallel provision of the federal constitution. See, e.g., State v. Gallant, 307 Or 152, 155, 764 P2d 920 (1988). However, the practice of construing the ex post facto clause of our constitution in accordance with prevailing federal precedents was not an abdication of the responsibility of independent construction. Rather, it reflected a determination that those federal precedents comported with Oregon judicial interpretation of the ex post facto prohibition of our state constitution.
In Beazell v. Ohio, 269 US 167, 169-71, 46 S Ct 68, 70 L Ed 216 (1925), Justice Stone summarized the federal ex post facto prohibition, as it was then understood:
“[A]ny statute which punishes as a crime an act previously committed, which was innocent when done, which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with a crime of any defense available according to the law at the time when the act was committed, is prohibited as ex post facto.
*291“Expressions are to be found in earlier judicial opinions to the effect that the constitutional limitation may be transgressed by alterations in the rules of evidence or procedure. See Calder v. Bull, [3 US 386, 1 L Ed 648 (1798)]; Cummings v. Missouri, [71 US 277, 18 L Ed 356 (1867)]; Kring v. Missouri, [107 US 221, 2 S Ct 443, 27 L Ed 506 (1883)]. And there may be procedural changes which operate to deny to the accused a defense available under the laws in force at the time of the commission of his offense, or which otherwise affect him in such a harsh and arbitrary manner as to fall within the constitutional prohibition. Kring v. Missouri, [supra]; Thompson v. Utah, [170 US 343, 18 S Ct 620, 42 L Ed 1061 (1898)]. * * *
“Just what alterations of procedure will be held to be of sufficient moment to transgress the constitutional prohibition cannot be embraced within a formula or stated in a general proposition. The distinction is one of degree.”
The court held that the law at issue in that case did not make criminal an act that was innocent when done or increase the quantum of punishment to which the accused was exposed. The law, therefore, was “procedural.” The court went on to hold that that alteration of procedure was not of sufficient moment to implicate ex post facto concerns.1
Shortly after Beazell, in Falter v. United States, 23 F2d 420, 425-26 (2d Cir), cert den 277 US 590 (1928), Judge Learned Hand said:
“[Beazell v. Ohio, supra] laid it down generally that the question [of whether a law violated the ex post facto prohibition] was one of degree and depended upon whether the result was ‘harsh and oppressive.’ Certainly it is one thing to revive a prosecution already dead, and another to give it a longer lease of fife. The question turns upon how much violence is done to our instinctive feelings of justice and fair play. For the state to assure a man that he has become safe from its pursuit, and thereafter to withdraw its assurance, seems to most of us unfair and dishonest. But, while the chase is on, it does not shock us to have it extended beyond the time first set, or, if it does, the stake forgives it.”
*292In State v. Dufort, 111 Or App 515, 827 P2d 192 (1992), we quoted from that passage with approval. The distinction drawn by Judge Hand, between revival of an extinct prosecution and extension of a viable one, appears to have been uniformly followed by federal and state courts. Compare State v. Dufort, supra, with State v. Tyler, 108 Or App 378, 815 P2d 1289 (1991). It also follows from Beazell’s acknowledgement that “procedural changes which operate to deny to the accused a defense available under the laws in force at the time of the commission of his offense * * * fall within the constitutional prohibition.” 269 US at 170.
The Beazell formulation of the federal ex post facto prohibition remained authoritative for 65 years. It was during that period that Oregon courts concluded that the ex post facto clause of the Oregon Constitution had a similar meaning. See, e.g., State v. Gallant, supra.
In 1990, in Collins v. Youngblood, 497 US 37, 110 S Ct 2715, 111 L Ed 2d 30 (1990), the United States Supreme Court overruled Kring v. Missouri, 107 US 221, 2 S Ct 443, 27 L Ed 506 (1883), and Thompson v. Utah, 170 US 343, 18 S Ct 620, 42 L Ed 1061 (1898) (to the extent that it relied on the ex post facto clause). The Collins Court held that procedural changes in the law may always be applied retrospectively without violating the federal ex post facto clause. In essence, Collins amputated the procedural arm of Beazell.2
Although the federal ex post facto clause is now construed differently under Collins, Oregon courts must still undertake an independent construction of the Oregon Constitution. This case squarely presents the question, for the first time, whether to follow Collins in its departure from precedent.3
*293The cases construing the Oregon Constitution consistently with the pre-Collins construction of the federal constitution remain good law until they are overruled. Because that construction is sound, I would adhere to it. The Beazell formulation should remain the controlling interpretation of the Oregon Constitution, notwithstanding Collins.
Procedural alterations in the law that implicate ex post facto concerns may well be few and far between. However, ORS 131.125(2), as applied to defendant in this case, deprives him of a vested and complete procedural defense. As such, it violates the ex post facto prohibition of the Oregon Constitution. Beazell v. Ohio, supra. The trial court properly allowed defendant’s demurrer to the indictment.
Warren and Haselton, JJ., join in this concurring opinion.It is critical to the dissent’s position that it ignores, even denies the existence of, the latter holding in Beazell. The dissent’s selective quotation from Beazell is significant. The quotation ends exactly where the discussion of procedural violations of the ex post facto clause begins.
Ironically, the Court in Collins purported to approve of, and rely on, Beazell.
In Dawson v. Board of Parole, 123 Or App 619, 622, 861 P2d 878 (1993), we expressly deferred the question whether to follow Collins, noting that the result would be the same whether we followed it or not. Similarly, in State v. Wille, 317 Or 487, 858 P2d 128 (1993), and Stole v. Langley, 318 Or 28, 861 P2d 1012 (1993), it was not necessary to decide whether to follow Collins, because the defendant showed an ex post facto violation even under the limited Collins formulation. 317 Or at 502-05. State v. Dufort, supra, also presented a situation in which the result was the same whether we applied the Collins, or the established Beazell, formulation.