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Did HB 3194 Put M11 Reform on the Horizon?

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by: Jessbarton • September 3, 2013 • no comments

When the 2013 Legislature passed House Bill 3194, two years of hard work by two variations of the "De Muniz Commission" (the Commission on Public Safety) ended " not with a bang but a whimper." The bill was a faint echo of the commission‘s original vision in fulfillment of its duty "to develop recommendations for comprehensive sentencing reform[.]" Executive Order No. 11-06.

But the dust now having settled exposes an exciting unintended consequence: HB 3194 could clear the way for meaningful Ballot Measure 11 reform.

This unintended consequence stems from the bill‘s Section 5, which applies to sentencings held on or after August 1, 2013. [1] Starting then, Section 5 reduces the presumptive sentences for third-degree robbery and identity theft under the repeat property offender (RPO) law, [2] from 24 months, to 18 months. [3]

In an admittedly complicated but manageable way, these reductions in sentences are what put the possibility of meaningful Measure 11 reform on the horizon.

The original, 24-month sentences were created by the voters in 2008 when they approved Ballot Measure 57. That voter approval implicates Ballot Measure 10. Along with Measure 11, the same petitioners put Measure 10 on the November 1994 ballot. Codified as Article IV, section 33 of the Oregon Constitution, Measure 10 states:

Notwithstanding the provisions of section 25 of this Article, a two-thirds vote of all the members elected to each house shall be necessary to pass a bill that reduces a criminal sentence approved by the people under section 1 of this Article.

As a practical matter, a legislative bill subject to Measure 10 is a veto-override effort, because passing it requires the same two-thirds supermajorities needed to override a governor‘s veto. [4] A one-third-plus-one minority of the Senate or the House can block the bill‘s passage. By exempting voter-approved sentences from the democratic process of majority rule that applies to virtually all other statutes, [5] Measure 10 makes meaningful reform of Measure 11 impossible. [6] Invalidating Measure 10 would make meaningful reform possible, and that‘s where HB 3154 comes in.

The bill passed the 60-member House with 40 votes. That met Measure 10‘s two-thirds majority requirement for the House. But the bill passed the 30-member Senate with 19 votes. As the prosecution bar is aware, this fell one vote short of Measure 10‘s requirement for the Senate.

Despite the fact that HB 3154‘s Senate passage did not comply with Measure 10, counsel for a defendant who would benefit from Section 5‘s sentence reductions must insist that the defendant‘s presumptive sentence is 18 months.

"Not so fast," the prosecution would claim. "Section 5 is void, because the bill didn‘t get two-thirds support in the Senate. The defendant‘s presumptive sentence is 24 months." [7]

That would be a good claim if Measure 10 is constitutional. But there are good arguments that it ain‘t. If successful, these arguments not only would require using HB 3194‘s Section 5, but they would enable meaningful reform of Measure 11 (and any other) voter-approved sentencing schemes.

Moreover, the arguments are readily available. They‘re the product of the rulings of the late Jackson County Circuit Court Judge Loren "Buzz" Sawyer, when he sentenced a defendant who was facing a 75-month Measure 11 minimum. [8] Judge Sawyer declared Measure 11 unconstitutional and then gave the defendant a lesser, guidelines sentence. The state brought a mandamus action, which ultimately was successful in compelling Judge Sawyer to resentence the defendant to the 75-month term. [9]

But not without a fight. A team of us with the agency then known as the State Public Defender‘s Office (now the Appellate Division of the Office of Public Defense Services), with a boost from work previously done by non-office colleagues (including Portland attorney Gayle Shields), defended Judge Sawyer in the mandamus action. Our best arguments relied on Measure 10 to attack Measure 11. We explained that the two measures were inextricably linked, with Measure 10 serving as the political "guardian" of its "ward," Measure 11. [10] We made the following arguments that Measure 10 was unconstitutional, which invalidity, we claimed, also would nullify Measure 11.

1. Equal Protection:
  • Measure 10‘s "guardianship" of Measure 11 violates Justice Stone‘s suggestion in United States v. Carolene Products, Inc. that "legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, [may] be subjected to more exacting scrutiny" under the Equal Protection Clause. [11]
  • Although reform advocates must obtain veto-proof supermajorities to reduce Measure 11 sentences, proponents need only simple majorities to increase Measure 11 sentences. This discrimination effectively "handicaps" reform advocates‘ political voice and influence relative to their political adversaries‘, and thereby violates certain of the reform advocates‘ fundamental, First Amendment rights. [12] Unless the state somehow can prove that a compelling governmental interest necessitates these violations, Measure 10 is unconstitutional. [13]
The Sawyer court rejected our Equal Protection claims on the ground that Measure 10 was "not at issue in this proceeding."[14] Because the court did not reject the claims on their merits, they remain viable. Moreover, the Sawyer court‘s decision would be no answer in a case involving HB 3194‘s 18-month sentences, for the prosecution‘s reliance on Measure 10 to seek 24-month Measure 57 sentences unquestionably would put Measure 10 at issue.
2. The republican government Guarantee Clause:
Article IV, section 4 of the United States Constitution guarantees that states will operate under a republican form of government, i.e., "a government administered by representatives chosen or appointed by the people or by their authority."[15] Among other things, this guarantee is intended to "institutionalize deliberative processes of choice" in law-making systems.[16] We presented two arguments that Measure 11 violates the Guarantee Clause, one of which is pertinent in an HB 3194 case. It runs as follows:
  • In a direct democracy law-making system such as Oregon‘s initiative system, "representatives" of "the people" do not make laws. As a result, those systems do not provide the deliberative processes that the Guarantee Clause requires. The clause therefore would seem to prohibit such systems.
  • Kadderly v. Portland, which is still good law, holds that so long as the state‘s deliberative law-making body, the Legislative Assembly, retains authority to change initiated laws, the initiative system does not offend the Guarantee Clause. The court explained, "Laws proposed and enacted by . . . initiative" meet with the Guarantee Clause requirements so long as they "are subject to the same constitutional limitations as other statutes, 'and may be amended or repealed by the legislature at will'." [17]
  • Under a variation of a Kadderly-based theory from Justice Linde‘s article in the Hastings Constitutional Law Quarterly, we argued that although Measure 11 is a statute so is subject to legislative amendment, owing to Measure 10‘s supermajority requirements, Measure 11 cannot "be amended or repealed by the legislature at will." For that reason, Measure 11 violates the Guarantee Clause.

Significantly, our variation of Justice Linde‘s Kadderly-based theory has even greater force in a direct attack on Measure 10. This is because as an initiated constitutional amendment, Measure 10 cannot "be amended or repealed by the legislature at [all]." [18] In a case involving HB 3194‘s Section 5, where the prosecution puts Measure 10 at issue, defense counsel may rely on this Kadderly-based theory to attack the measure directly and seek its nullification.

The Sawyer court primarily relied on Pacific Telephone Co. v. Oregon [19] to declare that our Guarantee Clause claims presented non-justiciable "political questions" and to decline to address them.[20] Thus, the court did not reject these claims on the merits, either, so they too remain viable.

The Sawyer court‘s political-question holding generated a two-justice dissent,[21] and for good reason. For example, the political-question doctrine is an aspect of either the federal constitution‘s separation of powers, or its case or controversy requirement for federal court jurisdiction, neither of which applies in state courts.[22] Indeed, not long after the Sawyer decision and when he was attorney general, Hardy Myers acknowledged that in "an appropriate case" — e.g., one involving an initiated constitutional amendment—his office might reconsider its position in Sawyer that Guarantee Clause claims aren‘t justiciable.[23]Then, in a subsequent opinion issued under Myers‘s watch, his department concluded that because the United States Supreme Court denied certiorari in Sawyer, whether the Oregon court‘s jurisdictional-based decision "is a correct extension" of Pacific Telephone remains an open question.[24]

In sum, in HB 3194 cases, defense attorneys should aggressively rely on the Guarantee Clause to rebut the prosecution‘s Measure 10-based arguments. Success would secure their clients‘ sentencing under Section 5, and, after all these years, finally would expose Measure 11 to meaningful reform.[25]

There is another potential impediment to a Guarantee Clause challenge to Measure 10, which is based on the fact that the measure took effect in December 1994; specifically, the claim that the state‘s 10-year statute of ultimate repose[26] bars challenges to an amendment approved nearly 20 years ago.

Like the claim about the supposed "wondrousness" of Measure 11 reform in 1997‘s SB 1049 (see n 6), this argument is bunk. An HB 3194 defendant‘s claim against Measure 10 wouldn‘t have ripened when the amendment took effect in 1994. It would ripen when the prosecution relies on the measure to try to invalidate the bill‘s Section 5. Even assuming the 10- year statute applies in criminal cases, the statute wouldn‘t start running until "ripening." As the Court of Appeals said in rejecting a similar prosecution claim, that laches barred a defendant from challenging the application to his case of years-old amendments to the sentencing guidelines, "Not until defendant was convicted of a crime to which the . . . amendments . . . applied could he have asserted his challenge to the constitutionality of those amendments. Defendant‘s challenge, thus, is timely."[27]

The biggest impediment to meaningful Measure 11 reform is Measure 10‘s supermajority requirements. HB 3194‘s amendments to the RPO law have the unintended consequence of providing a clear opportunity to present constitutional claims that could send Measure 10 into "the ash heap of history." This unintended consequence is just what Measure 11 reform advocates have been waiting for.

______________________________________________________________________________

  1. ↑ See Or Laws 2013, ch 649, § 6(1). Defendants who were originally sentenced before that date cannot get the benefit of these amendments, even if they were resentenced on or after August 1, 2013 as the result of an "appellate decision or a post-conviction proceeding or for any other reason." Or Laws 2013, ch 649, § 6(2).
  2. ↑ ORS 137.717.
  3. ↑ For now at least, Section 5 will "sunset" on July 1, 2023. See Or Laws 2013, ch 649, § 8.
  4. ↑ See Or Const Art V, § 15b(2).
  5. ↑ See Or Const Art IV, § 25(1).
  6. ↑ Fans of Measure 11 cite Senate Bill 1049 (1997) as proof that meaningful Measure 11 reform is possible. Their claim is bunk. It‘s true that SB 1049 provided some forms of relief from Measure 11. But through legislative "logrolling," so many Measure 11-enhancement provisions were added to SB 1049— including one that put five new crimes into the Measure 11 lists—that overall the bill increased the breadth of Measure 11. For several years I kept a $20 bill in my wallet, as consideration for a unilateral contract offer to anyone who could prove that SB 1049 removed more people from Measure 11 than it added in. After years of getting no takers, I spent the money on myself.
  7. ↑ Theoretically, the prosecution could rely on a non-severability theory to try to have HB 3194 declared totally invalid. But that effort should fail. See ORS 174.040.
  8. ↑ State v. Bobby Ron Vanzant, Jackson County Circuit Court No. 952538CC2.
  9. ↑ State ex rel Huddleston v. Sawyer, 324 Or 597, 932 P2d 1145, cert den, 522 US 994 (1997).
  10. ↑ The history of the two measures establishes their linkage and the petitioners‘ intent to establish a "guardian-ward" relationship. See, e.g., Defendant‘s Ans Br at 18-19, State ex rel Huddleston v. Sawyer, SC No. S42938.
  11. ↑ 304 US 144, 152-53 n 4, 58 S Ct 778, 82 L Ed 1234 (1937) (emphasis added).
  12. ↑ A metaphor may be useful in explaining this First Amendment violation. Reform advocates‘ essentially 67% vote burden is more than 32% greater than their adversaries‘ essentially 51% burden [(67 - 51) ’ 51 ≈ 31.4%]. Compare passing their respective bills to a 10,000 meter race. To win, reform advocates must run 13,140 meters in a faster time than their adversaries run only 10,000 meters.
  13. ↑ See, e.g., Eisenstadt v. Baird, 405 US 438, 447 n 7, 92 S Ct 1029, 31 L Ed 2d 349 (1972). See also Harper v. Virginia Bd. of Elections, 383 US 663, 670, 86 S Ct 1079, 16 L Ed 2d 169 (1966) ("where fundamental rights and liberties are asserted under the Equal Protection Clause, classifications which might invade or restrain them must be closely scrutinized and carefully confined").
  14. ↑ 324 Or at 609.
  15. ↑ Kadderly v. Portland, 44 Or 118, 144-45, 74 P 710 (1903), reh den, 44 Or 160, 75 P 222, 75 P 222 (1904) (emphasis added).
  16. ↑ Hans A. Linde, When Is Initiative Lawmaking Not “Republican Government, 17 Hastings Const LQ 159, 169 (1989).
  17. ↑ 44 Or at 144-45 (emphasis added).
  18. ↑ A constitutional amendment that the legislature refers to the voters might not offend the Guarantee Clause. This is because during their deliberations over the proposed amendment, the Legislative Assembly will have had the opportunity to fashion the referred amendment at will.
  19. ↑ 223 US 118, 32 S Ct 224, 56 L Ed 377 (1912).
  20. ↑ Sawyer, 324 Or at 622.
  21. ↑ See Id. at 631 (Durham, J., dissenting).
  22. ↑ See Note, Bearing the Judicial Mantle: State Court Enforcement of the Guarantee Clause, 68 NYU L Rev 870, 895-97 (1993). See also David B. Frohnmayer & Hans A. Linde, Initiating “Laws” in the Form of “Constitutional Amendments:” An Amicus Curiae Brief, 34 Willamette L Rev 749 (1998). Most of Frohnmayer and Linde‘s article is a reproduction of the amicus curiae brief they filed in support of Judge Sawyer‘s petition for certiorari of the Oregon Supreme Court‘s ruling that his Guarantee Clause claim was not justiciable.
  23. ↑ See Hardy Myers, The Guarantee Clause & Direct Democracy, 34 Willamette L Rev 659, 660- 61 (1998).
  24. ↑ Or Atty Gen Op No 8286 (2008) at 6 n 1. See also Hans A. Linde, What Is a Constitution, What Is Not, and Why Does it Matter, 87 Or L Rev 717, 729 (2008) ("[t]he Oregon Supreme Court, in a proper case, should be asked to reconsider the 'open question‘ whether [Sawyer‘s] reading of the precedents was wrong, and to return to the opposite position that the court took a few years earlier," in State v. Montez, 309 Or 564, 603–04, 789 P2d 1352 (1990)).
  25. ↑ Based on the state constitution‘s one-amendment principle, see Armatta v. Kitzhaber, 327 Or 250, 959 P2d 49 (1998), there may be a state law claim against Measure 10‘s validity. For example:
    Measure 10 expressly amended the simple-majority requirements of Article IV, section 25(1). By effectively immunizing Measure 11 sentences from legislative amendment, Measure 10 also amended the legislature‘s "power of the purse." See Or Const Art IX, § 4 (―[n]o money shall be drawn from the treasury, but in pursuance of appropriations made by law‖). This is because the legislative budgeting process operates under a zero-sum game theory, i.e., one in which "[f]or every winner there is a loser, and winners can only exist if losers exist." Lester C. Thurow, The Zero-Sum Society 11 (1980). By mandating the retention of Measure 11 sentences, Measure 10 necessarily mandates appropriations to accommodate the sentences‘ costs. As a result, the legislature must finance those costs:
    1. By raising taxes—which, ironically enough, would require three-fifths supermajority support, see Or Const Art IV, section 25(2)); or
    2. By reducing appropriations elsewhere—including possibly for constitutionally mandated programs such as ―a uniform, and general system of Common schools,‖ Or Const Art VIII, § 3); or
    3. By some combination of 1 and 2.
    Under a one-amendment theory such as the one just summarized, Measure 10 amended (at least) two constitutional provisions—Article IV, section 25 and Article IX, section 4—so would be void. Whether to raise such a claim is a subject for further examination. But if one should be raised, counsel should raise it ahead of the federal claims discussed above. See, e.g., State v. Kennedy, 295 Or 260, 265-68, 666 P2d 1316 (1983).
  26. ↑ ORS 12.140.
  27. ↑ State v. Norris, 188 Or App 318, 72 P3d 103, rev den, 336 Or 126 (2003) (citation omitted).

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