UPDATED JUNE 2011
by: Ryan • April 7, 2011 • no comments
UPDATED JUNE 23, 2011: This argument just got a whole lot more compelling.
The title of this post is only semi-serious. Part of it is an exercise in seeing if a title like that drives up the size of our audience. (Welcome all police officers!)
The semi-serious part is this. Today, the OSC announced that it had accepted review of two cases involving the Equal Privileges clause. (See the post preceding this one.) The court describes one of the questions presented as follows:
"(3) Does Article I, section 20, of the Oregon Constitution require consistent administration of all constitutionally significant benefits and burdens that are generally administered by state actors (e.g., a sheriff's initiation of a criminal investigation pursuant to her general authority), or does Article I, section 20, only require consistency of a state actor's application of benefits and burdens when they are specifically created and allocated to that actor for administration by law (e.g., a sheriff's grant or denial of a concealed gun license as directed by ORS 166.291 et seq.)?"
Leave aside the facts of the particular case for which that question was raised. Let's put it in terms of traffic tickets.
A traffic ticket is a burden. Alternatively, a warning, in lieu of a ticket, is a benefit. Either way, individual police officers make decisions on whether to grant that benefit or impose that burden every day. What factors does the officer use? Are there standards promulgated by the agency that officer works for? Are there reasons for the benefit the officers might not want to admit to (e.g., the attractiveness of the driver)?
And if there is no policy, if there are no standards, if the officer's actions are largely arbitrary, then is depriving some drivers of that benefit (the warning in lieu of the ticket) in the absence of consistent standards a violation of Oregon's Equal Privileges clause?
So, for the lawyers out there who handle traffic violations, if you've got a client with a traffic ticket, you might consider filing a motion to dismiss for an equal privileges violation, and during the hearing on the motion, ask the officer: (1) do you ever give out warnings to drivers who committed the same infraction rather than tickets? (2) do you have standards that you adhere to when making the decision to give a warning or a ticket? (3) what are those standards? (4) does your employer have any standards that guide your decision to give my client a ticket instead of a warning?
Some people may believe that you have to show disparity of treatment, that is, you must show a similarly situated defendant who did not get a ticket. But if there's no systematic policy, I would point to Sun Ray Drive-In Dairy, Inc. v. Oregon Liquor Control Com., 16 Or App 63, 72 (1973), where no disparity was required when a systematic policy did not exist. ("There is no way for him or for us to know . . . whether he was subjected to the same policy standards . . . .")
Depending on the answers, you'll want to tailor your argument for dismissal accordingly, but win or lose, you'll likely have fun making the argument.
