Log Rolling DUIIs - Why Measure 73 is Unconstitutional
by: Bengalx • May 10, 2011 • no comments
Oregon voters approved the Kevin Mannix spawned Ballot Measure 73 in the November 2010 election. BM 73 paired draconian sentencing of "repeat" sexual offenders with new get tough on DUII provisions. The new DUII law does 3 things:
- Makes a third DUII in 10 years a felony
- Gets rid of the time limitation for any DUII thereafter
- Imposes a 90 day minimum sentence for the new felony DUII
[The attached brief] argues that the pairing of DUII and sex cases violates the "single subject" rule because there are clearly two separate subjects that are not "properly connected". In fact, Measure 73 is exactly the sort of law at the heart of the single subject rule in that it encouraged people that fear sex offenders to vote for a less popular DUII provision, a practice known as "log rolling." Further, Ballot Measure 73 attached a funding provision in an attempt to alleviate fears about the costs of the incarceration of the now felonious DUII drivers. The brief argues that this is an unconstitutional appropriation. Finally the brief discusses severability and argues that no provision of the measure can be saved if any provision is unconstitutional.
The main argument from the brief is after the jump:
Ballot Measure 73 Violates the Single Subject Rule of the Oregon Constitution
Part of the Oregon Constitution since its inception, the "single subject rule," Art. IV, Section 1 (2)(d), requires all legislative acts to "embrace but one subject, and matters properly connected therewith." In assessing "single subject" challenges to initiative petitions, the first task is to determine whether the measure embraces more than one subject. If it does, it violates Article IV, Section 1 (2)(d), regardless of whether the subjects are "properly connected." State v. Lawler, 144 Or App 456, 464 (1996).
Not surprisingly, the courts have struggled with what constitutes a "subject." The larger the scope of a stated subject matter, the more likely that that subject will subsume all parts considered. In Oregon Education Association v. Phillips, 302 Or 87, 104-105 (1986), the court considered a "single subject" challenge regarding a voter initiative constitutional amendment. Justice Linde, in his concurring opinion, analogizes classification of a "subject" to the Linnaean system of classifying plants and animals. For instance, he argues, if a measure is to control the Anopheles Mosquito, the "subject" will be that animal. If the measure adds control of gypsy moths, the subject could be "insects." Id. If rattlesnakes are added, the subject could be "dangerous organisms," "pests," or "Kingdom Animalia." If more plants or creatures need to be controlled, "living things," "things found in North America," "things found on Planet Earth" would do the trick. "Embrace one subject," then, is an elusive test. A drafter with imagination should have no problem proposing a "subject matter" that includes any piece of legislation, as long as the proposed subject matter is broad enough.
Ballot Measure 73 makes three important changes to Oregon Law. First, it creates new mandatory sentences for repeat "major" sex offenses. Second, it changes the definition of the crime of Felony Driving Under the Influence of Intoxicants to affect those with three priors in ten years to those with two priors in ten years. Third, it proposes a mandatory sentence for Felony Driving Under the Influence. The drafters of the measure helpfully state the subject matter as "Crimefighting." Calling the subject "Crimefighting" is similar to Justice Linde's classification of "pests." The drafters have backed so far away from the painting that the painter's strokes are no longer visible. Apparently to the drafters, "Crimefighting" means everything that belongs in the criminal code, the driving regulations, and the sentencing manual combined. This, however, lacks sufficient particularity to house a meaningful "single subject" debate.
Ballot Measure 73 would significantly change different volumes of the Oregon Revised Statutes. Actions involving sex offenses are found in Volume 3. Actions involving driving offenses are found in Volume 9. See also Armatta v. Kitzhaber, 327 Or 250 (1998) (Ballot Measure 40 violates similar "separate vote" requirement because it affects two portions of the Oregon Constitution.)
Section 3 (a) of the measure creates a new felony. Creation a new crime is fundamentally different than a sentencing statute. See eg. State ex rel Caleb v. Beesley, 326 Or 83, 91-92 (1997) (Court overrules single subject challenge to Ballot Measure 11 by classifying the subject as "mandatory imprisonment of any person, 15 and older" and not "a major overhaul of the Oregon Juvenile Code") Ballot Measure 73 may contain mandatory sentences for certain crimes, but it also creates a new crime, which is a separate subject matter.
A meaningful discussion of whether a ballot measure contains a "single subject" requires a discussion of why the "single subject" rule exists at all. The "single subject" rule was intended to prevent "log rolling," the practice of inserting unrelated matters into a single initiative to force voters favoring one matter to vote for another. Lawler, 144 Or App at 465 (1996 case citing Lovejoy v. Portland, 95 Or 459, 465 (1920)). Armatta, 327 Or at 275.
Here, the drafters of this measure have paired provisions involving intoxicated driving with provisions involving the most universally hated category of offenders, sex offenders. Sex offenses compete only with murder for the longest sentences in this state. ORS 137.700. Sex offenses are the only charges outside of murder that can result in lifetime incarceration. ORS 137.719. Sex offenses are the only charges outside of murder that result in lifetime post prison supervision even after prison rehabilitation is complete. ORS 144.103. Sex offenses are the only crimes where the government has seen fit to register and track the offenders even after rehabilitation. ORS 181.592 et seq. Only names of sex offenders are put on an on-line data base so that citizens can track their movement. ORS 181.592 et seq. Even amongst inmates in the penitentiary, sex offenders are widely believed to be a lower class of person worthy of censure in that population. The evidence is clear that the people of this state believe that sex offenders should be treated harshly and seemingly without mercy.
The drafters' gambit was an effective one. The sex offender portion of the measure will have no current financial impact to the state because those affected by it will not complete their pre Ballot Measure 73 sentences for 15 years. "Explanation of Estimate of Financial Impact," Official 2010 General Election Voters' Pamphlet (2010). The DUII portion alone is estimated to cost $1.4 million in the first year and increase between $18.1 and $29.1 million per year after the fifth year. That money is expected to come from the General Fund, to the expense of public education, services for children, elderly, and disabled, public safety, and other programs. Id.
Certainly, alone, the intoxicated driving portion would be a more difficult victory for the drafters. A measure that incarcerates sex offenders with no upfront costs is an easy sell. Felony treatment for drunk driving and mandatory incarceration in exchange for less money for schools, services, and public safety? Harder sell. It seems that was exactly as the drafters intended it. The penalty for sex offenders is first and most prominent in the measure explanation. The creation of the new felony is not even mentioned in the ballot title, nor in the "result of 'yes' vote section" but rather buried in the last two sentences of the "summary" paragraph.
This is what the courts and the drafters of the Oregon Constitution were speaking of in prohibiting "log rolling." That is, the drafters attach a controversial, high expense piece of legislation at the end of a no cost (or delayed cost) law that has almost universal support. Here, the need for separate subject matters is most apparent. The voters need an opportunity to consider the DUII statute on its merits without the overhanging prejudicial drive of societal feelings against sex offenders.
Ballot Measure 73 addresses at least two distinct subject matters in creating a new felony and setting mandatory sentences. It is a perfect example of the type of chicanery that the "single subject" rule of the Oregon Constitution was designed to prohibit.Therefore, the ballot measure as applied to Mr. Kohlmetz is unconstitutional. It must not apply to him.
Barry Engle is a Portland attorney specializing in the defense of criminal cases from misdemeanors to murders. You can find he and his law partner David Giles at englegiles.com.
