dissenting.
I dissent. Until the majority’s opinion, the issue in this case had been whether the 1991 amendment to ORS 131.125(2) violated constitutional ex post facto prohibitions. Instead of addressing that issue, the majority finds that a due process issue has been preserved and holds that the retroactive application of the statute of limitations here violates “fundamental fairness.” I cannot agree that that issue has been preserved in a posture capable of appellate review.
Far from raising a due process argument, defendant’s sole constitutional challenge in his demurrer to the indictment was that the legislative act that purported to revive an expired statute of limitations is invalid as an ex post facto law.1 He did not mention due process in his memorandum in support of the demurrer. It was the state, during the hearing on defendant’s demurrer, that first raised the possibility of a due process argument. Defendant’s co-counsel then expressed a ’willingness to brief the issue if the court wished, but stated:
“[Ejssentially what [the United States Supreme Court] has done is no longer considering ex post facto arguments that are *294dressed up in a due process argument. That is expressly what they’re not doing now.
“If the Court prefers, we would be willing to address the fundamental fairness due process issue at a State level. We didn’t think it was necessary with the authorities that we found. And we believe that, [co-counsel] and I believe because of the way Rehnquist and how courts now are dealing with fundamental fairness, that that’s a dead issue. That there is no longer a fundamental fairness approach that the 9th Circuit, if this case would ever go there, would ever pay any attention to or that the Supreme Court would grant cert on. If we were to win on that basis and the State appeals, I think we would lose.”
In its brief, the state addresses the due process issue only in a footnote, stating that “defendant’s attorney did allude to a ‘fundamental fairness due process’' claim, but apparently decided not to pursue it * * *.”2 In his answering brief, defendant “rejects the state’s assertion that he waived arguments based on the due process clause * * but he does not rely on a due process argument to uphold the trial court’s decision. Rather, he states that, “if the ruling of the trial court is reversed, [he] will raise the [due process] issue on remand with other issues on which the trial court withheld its ruling.”
The majority finds that “defendant has properly advanced this issue on appeal,” 127 Or App at 287, on the basis of his one-page “outline” of an argument “[i]nthe event this court chooses to deal with the due process issue.” The majority then concludes that, on the above record, the “issue” of fundamental fairness was preserved, reciting the rubric from State v. Hitz, 307 Or 183, 766 P2d 373 (1988). However, in recent discussions, the Supreme Court has made it clear that the role of an appellate court is review, which incorporates the underlying principle that “an appellate court ordinarily considers an issue * * * through competing argument of adversary parties with an opportunity to submit both written and oral arguments to the court.” Ailes v. Portland Meadows, Inc, 312 Or 376, 382, 823 P2d 956 (1991). *295On this record there has been nothing approaching a meaningful written or oral argument on the issue of due process.
However, if the majority elects to address a due process issue not properly before us, its focus in resolving the question is the opposite of what the Supreme Court has cautioned must be the approach. In the field of criminal law, the category of infractions that violate “fundamental fairness” is very narrow, based on the recognition that the Due Process Clause has limited operation beyond the specific guarantees set out in the Bill of Rights. Dowling v. United States, 493 US 342, 352, 110 S Ct 668, 107 L Ed 2d 708 (1990). Not only has the Supreme Court shown little inclination to use the Due Process Clause to interfere with a state’s ability to regulate criminal procedure, see Spencer v. Texas, 385 US 554, 564, 87 S Ct 648, 17 L Ed 2d 606 (1967), any such challenge invokes a complex analysis.
In Medina v. California, _ US _, 112 S Ct 2572, 120 L ED 2d 353 (1992), the Supreme Court set out the analytical framework for assessing the validity of state criminal procedures under the Due Process Clause. Under that analysis, the first inquiry is whether there is a historical basis for concluding that the state procedure violates due process. The historical analysis made by the Court in Medina demonstrated reliance on precedent from the 17th, 18th and 19th centuries. If there is no historical basis from which to conclude that there is a due process violation, the next inquiry is whether the challenged “procedure transgresses any recognized principle of ‘fundamental fairness’ in operation.”_ US at _, 112 S Ct at 2578. That inquiry is specific to the state’s procedure and the protections accorded to the defendant.
I am not convinced by the majority’s “historical” analysis, which quotes from a 1934 New York case and from a 1992 Washington case, which, in turn, quotes the New York case. The majority also provides no analysis of how the change in the statute of limitations is fundamentally unfair “in operation.”3 The majority’s holding is grounded only on *296its perception that changing the time in which a defendant must answer for an alleged criminal act is just not “fair.” That is an insufficient basis on which to declare a statute unconstitutional.
We err in deciding the constitutionality of a statute on a ground that has not been thoroughly argued and briefed. On the record before us, we are not usually so quick to find that a constitutional issue has been preserved, and I can conclude that the majority does so here only because it cannot accept that the amended statute presents no ex post facto violation.
I turn to the issue properly before us. Questions that implicate the ex post facto provisions of the federal and state constitutions are analyzed similarly. See State v. Wille, 317 Or 487, 502, 858 P2d 128 (1993); State v. Perez, 119 Or App 436, 439, 851 P2d 617 (1993); State v. Dufort, 111 Or App 515, 520, 827 P2d 192 (1992). The ex post facto clauses prohibit the legislature from enacting a law that (1) punishes an act that was legal when it occurred; (2) increases, after commission of the crime, the punishment for that crime; or (3) deprives the perpetrator of a defense that existed when the crime was committed. Collins v. Youngblood, 497 US 37, 42, 110 S Ct 2715, 111 L Ed 2d 30 (1990); State v. Wille, supra, 317 Or at 502; State v. Dufort, supra, 111 Or App at 520.
The third category of ex post facto laws is really a variation of the first two. The United States Supreme Court has made it clear that, properly construed, the term “defense” should be “linked to the prohibition on alterations in ‘the legal definition of the offense’ or ‘the nature or amount of the punishment imposed for its commission.’ ” Collins v. Youngblood, supra, 497 US at 50 (quoting Beazell v. Ohio, 269 US 167, 169-70, 46 S Ct 68, 70 L Ed 216 (1925)). A change in the limitation period for the prosecution of a criminal act is not linked to the elements of the defense or the punishment of the crime. It does not change any affirmative defense or excuse that would make the act not a criminal offense as to defendant.4 Because a change in the limitation period does *297not reach those categories, the expiration of the limitation period in effect when defendant committed the act conferred no constitutional right on defendant, under the ex post facto clauses of either constitution, to be free from criminal prosecution.
Judge Leeson argues that procedural defense was a basis of Beazell v. Ohio, supra, and was the jurisprudence adopted by Oregon courts. She concludes, therefore, that, because “Collins amputated the procedural arm of Beazell,” 127 Or App at 292, we should reject Collins and adhere to the Beazell formulation.
That understanding of Beazell and the conclusion that Collins radically departed from earlier ex post facto jurisprudence is not correct. In Beazell, the defendants appealed from application of an Ohio statute that was amended after the date of their offense but before the defendants were jointly indicted. .The original statute provided that jointly indicted defendants had the right to be tried separately. The amendment made separate trials a matter of discretion with the trial court. The Court rejected the defendants’ argument that applying the amended statute to them violated the ex post facto prohibition:
“The constitutional prohibition and the judicial interpretation of it rest upon the notion that laws, whatever their form, which purport to make innocent acts criminal after the event, or to aggravate an offense, are harsh and oppressive, and that the criminal quality attributable to an act, either by the legal definition of the offense or by the nature or amount of the punishment imposed for its commission, should not be altered by legislative enactment, after the fact, to the disadvantage of the accused.
“But the statute of Ohio here drawn in question affects only the manner in which the trial of those jointly accused shall be conducted. It does not deprive the [defendants] of any defense previously available, nor affect the criminal quality of the act charged. Nor does it change the legal definition of the offense or the punishment to be meted out. The quantum and kind of proof required to establish guilt, and all questions which may be considered by the court and *298jury in determining guilt or innocence, remain the same.” Beazell v. Ohio, supra, 269 US at 170. (Emphasis supplied.)
Judge Leeson does not cite that holding, relying instead on dicta in which the court noted the “procedural” discussion in Kring v. Missouri, 107 US 221, 2 S Ct 443, 27 L Ed 507 (1883), and Thompson v. Utah, 170 US 343, 18 S Ct 620, 42 L Ed 1061 (1898). She does not address the Court’s conclusion of its discussion that5
“the constitutional provision was intended to secure substantial personal rights against arbitrary and oppressive legislation * * * and not to limit the legislative control of remedies and modes of procedure which do not affect matters of substance.” Beazell v. Ohio, supra, 269 US at 171. (Emphasis supplied.)
A Statute of Limitations defense does not affect a matter of substance. It is not a defense that goes to the quantum of proof or to a question related to guilt or innocence. It is, rather, a defense that avoids those considerations.
Contrary to Judge Leeson’s understanding, Collins did not abrogate the ex post facto jurisprudence of Beazell. In overruling Kring v. Missouri, supra, and Thompson v. Utah, supra, (to the extent that Thompson rested on the Ex Post Facto Clause) the Collins Court did not view its analysis as a “radical departure.” As the Court noted, the reasoning of those cases had not been relied on since 1898, and the historical basis of the clause demonstrated that
“the word ‘procedural,’ * * * refers to changes in the procedures by which a criminal case is adjudicated, as opposed to changes in the substantive law of crimes.” Collins v. Youngblood, supra, 497 US at 45.
That understanding of ex post facto jurisprudence is the same as noted by the Beazell court. The reach of the ex post facto provision was narrow when Beazell was decided and remains narrow under Collins. That narrow interpretation has been implicitly or explicitly adopted by the Oregon Supreme Court and this court. See State v. Wille, supra; State *299v. Dufort, supra 6 The change in the Statute of Limitations that defendant challenges here does not come within the traditional reach of the ex post facto clauses.
Determining a limitation period for the prosecution of a crime rests with the legislature. State v. Dufort, supra, 111 Or App at 519. Nothing prohibits the legislature from changing the time period in which to prosecute those who commit sex crimes against children. Defendant allegedly committed his crimes within six years of the indictment returned against him. I would decide this case as the parties here argued it, hold that the ex post facto provisions do not bar defendant’s prosecution and reverse and remand.
Richardson, C. J., and Deits and Edmonds, JJ., join in this dissent.
Defendant also demurred on the ground that the crimes alleged were barred by a previous plea negotiation.
The state’s understanding that defendant waived a due process argument is not unreasonable, given defendant’s position in the trial court.
That inquiry here would require an analysis of the nature of the defenses available to defendant, as in an ex post facto analysis as discussed infra. Thus, the issue would become an “ex post facto argument dressed up in a due process argument,” as defendant’s counsel recognized in the trial court.
It is pure legal fiction to assert that changing a statute of limitations changes the definition of a criminal act. That there was a period of time following the *297expiration of the limitation period in which defendant’s prosecution was time-barred has nothing to do with the fact that the act that he allegedly committed in 1986 was punishable as a crime at that time.
Examples of “procedural” changes that the Court did not find to violate ex post facto prohibitions included a statute that enlarged the class of persons who could be witnesses at trial and changes in the rules of evidence after indictment. Beazell v. Ohio, supra, 269 US at 171.
In State v. Wille, supra, 317 Or 502, the Supreme Court reiterated that the state and federal ex post facto clauses are to be construed “without distinguishing them.” Further, both we and the Supreme Court have, on at least one occasion, relied almost exclusively on the United States Supreme Court’s Collins analysis. In State v. Wille, supra, the Oregon Supreme Court held that retroactive application of certain amendments adding a new penalty for aggravated murder violated the state and federal prohibitions against ex post facto legislation, because the amendments made “ ‘more burdensome the punishment for a crime, after its commission.’ ” 317 Or at 503, (quoting Collins v. Youngblood, supra, 497 US at 42). In State v. Dufort, supra, 111 Or App 520, we quoted the definition of “defense” set out in Collins and held that the extension of an unexpired limitation period does not deprive the defendant of a “defense” within the meaning of the expost facto clauses. 111 Or App at 521.