A Weird Bit of Oregon Legal History and the Encouraging Defense that's been Forgotten
St v. Alvey is a little known, 2006 per curiam decision on the equal privileges clause. Here's the substantive portion of the opinion in its entirety:
Defendant was indicted on 10 counts of encouraging child sexual abuse in the second degree, a Class C felony. ORS 163.686. Defendant moved to dismiss on the ground that the statute under which he was charged contains the same substantive elements as ORS 163.687, a Class A misdemeanor. According to defendant, the two statutes thus impermissibly conferred on the district attorney discretion to charge the same conduct as either a felony or a misdemeanor, in violation of state and federal constitutional guarantees of equal treatment. The trial court agreed and dismissed the indictment. The state now appeals, arguing that, although the Oregon Supreme Court previously had concluded in State v. Pirkey, 203 Ore. 697, 281 P.2d 698 (1955), that the state and federal constitutions prohibit such prosecutorial discretion, Pirkey has since been overruled. The state is correct. City of Klamath Falls v. Winters, 289 Ore. 757, 781-82, 619 P.2d 217 (1980); State v. Van Hoomissen, 125 Ore. App. 682, 683, 866 P.2d 521 (1994).State v. Alvey, 204 Ore. App. 681, 682 (2006)
Now, if you really wanted to, maybe you could take issue with the conclusion that - when it comes to the equal privileges clause - Klamath Falls overruled Pirkey. Even though both opinions dealt with the equal privileges clause, there are significant factual differences between them that - in a perfect world, with infinite resources - we might want to explore. But that's not what makes Alvey interesting. Rather, Alvey might be wrong for a reason that has absolutely nothing to do with the equal privileges clause. It might be wrong because it treats Pirkey as though it is solely an equal privileges case. It wasn't . . . maybe. When the Pirkey court struck as unconstitutional a crime that could be treated as either a misdemeanor or a felony, it seemed to suggest that it did so under Oregon's proportionality clause as well.
The Oregon Constitution provides that "all penalties shall be proportioned to the offense. * * *" Oregon Constitution, Article I, Section 16. In the case at bar the offense, that is to say, the specific act which is prohibited, is clearly defined, but it is difficult to see how two separate and distinct punishments can both be proportionate to the same identical offense when the sentencing court is given no discretionary power to choose between them. State v. Pirkey, 203 Ore. 697, 705 (Or. 1955)
That said, it's not entirely unambiguous that the Pirkey opinion was rooted in an Article 1, section 16, violation, as well as an EP violation. Opinions in 1955 were not written with the same analytical rigor that they are now. Maybe the court was merely suggesting there might also be a proportionality violation. On the other hand, if you're inclined to read the above passage as finding a proportionality violation in addition to an EP violation, then you'd have to conclude that the COA is not in a position to ignore that portion of Pirkey, because there's been no Supreme Court case to the contrary, at least not that I'm aware of.
With the following exception. Proportionality challenges probably can't be raised until sentencing under any circumstances. But I believe that's a relatively new development in the law and wouldn't be dispositive on whether the Encouraging statutes violated Article I, section 16. It would simply postpone when the argument could be raised.
There's nothing in the Alvey opinion to suggest this argument was considered by the Court of Appeals. This isn't surprising. Mr. Alvey was pro se.