Oregon v. Savastano
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Defendant was accused of embezzling money from her employer in multiple transactions over a period of sixteen months. The prosecutor aggregated those transactions to indict defendant on sixteen counts of theft, one count for each month. The prosecutor's office did not have a "policy" for aggregating theft transactions, but did so to create "a clear organizational outline for the jury." Defendant moved to dismiss the indictment, arguing that it violated the Supreme Court's mandate in "Oregon v. Freeland," (667 P2dd 509 (1983)). The trial court denied the motion, but the Court of Appeals reversed. The issue before the Supreme Court in this case centered on the privileges and immunities provision of the state constitution, and whether it applied to prosecutors' charging decisions. If so, then the question remaining in this case was whether the prosecutor must consistently adhere to a coherent, systematic policy in making charging decisions. Upon review, the Supreme Court reversed the Court of Appeals and affirmed defendant's conviction. By this decision, the Supreme Court overruled "Freeman" and reaffirmed its decision in "Washington v. Clark," (630 P2d 810 (1981)).
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Filed: September 12, 2013 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Petitioner on Review, v. TIFFANY LEE SAVASTANO, Respondent on Review. (CC C081586CR; CA A141053; SC S059973) En Banc On review from the Court of Appeals.* Argued and submitted September 20, 2012; resubmitted January 7, 2013. Mary H. Williams, Deputy Attorney General, Salem, argued the cause and filed the brief for petitioner on review. With her on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General. Ernest G. Lannet, Chief Deputy Defender, Salem, argued the cause and filed the brief for respondent on review. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services. Charles F. Hinkle, Portland, filed the brief for amicus curiae ACLU Foundation of Oregon, Inc. BALMER, C. J. The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed. *Appeal from Washington County Circuit Court, Thomas Kohl, Judge. 243 Or App 584, 260 P3d 529, adh d to on recons, 246 Or App 566, 266 P3d 176 (2011). 1 BALMER, C. J. 2 This case requires us to examine Article I, section 20, of the Oregon 3 Constitution -- the privileges or immunities provision -- in the context of prosecutorial 4 discretion. Specifically, we must determine whether Article I, section 20, applies to 5 prosecutors' charging decisions and, if so, whether a prosecutor must consistently adhere 6 to a coherent, systematic policy in making charging decisions. 7 Defendant was accused of embezzling money from her employer in 8 numerous transactions over a period of 16 months, and the prosecutor aggregated those 9 transactions to indict defendant on 16 counts of theft -- one count for each month. 10 Although the prosecutor's office did not have a "policy" for aggregating theft 11 transactions, the prosecutor aggregated the transactions by month to create "a clear 12 organizational outline for the jury." Defendant moved to dismiss the indictment, arguing 13 that it violated Article I, section 20, because this court's decision in State v. Freeland, 295 14 Or 367, 375, 667 P2d 509 (1983), required the prosecutor to apply a "coherent, 15 systematic policy" when aggregating theft transactions. The trial court denied that 16 motion, and defendant entered a conditional guilty plea. On appeal, the Court of Appeals 17 reversed, holding that the state had violated Article I, section 20, because the prosecutor's 18 office had no policy providing consistent guidance for prosecutors regarding whether and 19 how to aggregate multiple theft transactions. State v. Savastano, 243 Or App 584, 589- 1 1 90, 260 P3d 529 (2011).1 For the reasons set out below, we reverse the decision of the 2 Court of Appeals and affirm defendant's conviction. In doing so, we overrule Freeland 3 and reaffirm this court's decision in State v. Clark, 291 Or 231, 630 P2d 810, cert den, 4 454 US 1084 (1981). 5 I. FACTS AND PROCEEDINGS BELOW 6 Defendant was accused of embezzling more than $200,000 from her 7 employer over a period of 16 months in numerous theft transactions. The prosecutor 8 relied on an aggregation statute to aggregate those theft transactions: "The value of 9 single theft transactions may be added together if the thefts were committed * * * 10 [a]gainst the same victim, or two or more persons who are joint owners, within a 180-day 11 period." Former ORS 164.115(5) (2007), renumbered as ORS 164.115(6) (2011). The 12 prosecutor aggregated the individual theft transactions by month and charged defendant 13 with 16 counts of theft, including 10 counts of first-degree aggravated theft and six 14 counts of first-degree theft.2 1 The state sought reconsideration to clarify the court's disposition of the case. The court clarified that it had not intended to dictate any particular remedy, and instead had intended to remand the case for further proceedings. State v. Savastano, 246 Or App 566, 568, 266 P3d 176 (2011). 2 A person commits first-degree aggravated theft if "[t]he value of the property in a single or aggregate transaction is $10,000 or more." ORS 164.057. A person commits first-degree theft if "[t]he total value of the property in a single or aggregate transaction is * * * $750 or more." ORS 164.055(1)(a) (2007). ORS 164.055(1)(a) was amended in 2009, and, among other changes, the legislature increased the threshold value of property from $750 to $1000. Or Laws 2009, ch 16, § 3. We apply the 2007 version of the law here -- as did the Court of Appeals -- because 2 1 Defendant filed a motion to dismiss the indictment, arguing that her rights 2 under Article I, section 20, of the Oregon Constitution3 had been violated, because there 3 was no "coherent, systematic policy" guiding the prosecutor's exercise of his discretion to 4 aggregate multiple theft transactions. During the hearing on defendant's motion, the 5 prosecutor explained how the aggregation decision had been made: 6 7 8 9 10 11 12 13 14 15 "We don't have a policy for the way that these theft cases are aggregated. What we look at is a number of factors that are as unique as defendants are unique and as particular criminal acts are unique. * * * [I]n this particular case, as a side note, it was a decision based on clarity for a jury. It made a lot of sense. There are a number of acts in any of the -- in every one of those months we're talking about. * * * We could have charged every, single one of those acts and we could have had an indictment with several hundred charges, I imagine. But what made sense in this particular case was to lump everything together by month and have a clear organizational outline for the jury when they're looking at the case." 16 The trial court denied defendant's motion, stating that the prosecutor was "well within 17 [his] discretionary authority in charging the case in the way that [he] did." Defendant 18 entered a conditional guilty plea and appealed the trial court's denial of her motion. 19 The Court of Appeals reversed. The court began by reviewing this court's 20 Article I, section 20, case law. The court noted that Article I, section 20, protects both 21 individuals and classes of individuals. Savastano, 243 Or App at 588; see also Clark, 22 291 Or at 237 (noting that Article I, section 20, "forbids inequality of privileges or defendant's theft transactions and the indictment occurred before the 2009 amendment. 3 Article I, section 20, of the Oregon Constitution provides, "No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens." 3 1 immunities not available 'upon the same terms,' first, to any citizen, and second, to any 2 class of citizens"). This court's cases have analyzed separately individual-based claims -- 3 those focused on whether the government has granted or denied privileges or immunities 4 "without legitimate reasons related to [a] person's individual situation" -- and class-based 5 claims -- those focused on whether the government has granted or denied privileges or 6 immunities to a class of citizens based on "unjustified differentiation." Clark, 291 Or at 7 239. Because defendant raised an individual-based claim, rather than a class-based 8 claim, the Court of Appeals relied on the case law involving those claims and concluded 9 that Article I, section 20, applies to prosecutorial discretion, including prosecutorial 10 charging decisions. Savastano, 243 Or App at 588 (citing Oregon cases applying Article 11 I, section 20, analysis to decisions of prosecutors). The court then set out a two-part test 12 for analyzing individual-based claims under Article I, section 20, drawing, in part, from 13 this court's decision in Freeland: 14 15 16 17 18 19 "First, has a state actor made a decision that confers a privilege or imposes an immunity of constitutional magnitude? Second, if so, has the person claiming a constitutional violation shown that the decision did not result from the application of 'sufficiently consistent standards to represent a coherent, systematic policy[']?" Id. (quoting Freeland, 295 Or at 375).4 4 As we discuss below, the Court of Appeals did not read Freeland to require defendant to show that she had been treated less favorably than any other particular defendant, and she in fact made no such showing. Rather, the court appears to have concluded that it was sufficient for defendant to show that there were multiple ways in which the charges against her could have been aggregated, at least some of which would have been more favorable to her than the aggregation-by-month that the prosecutor used, 4 1 Applying that two-part test, the Court of Appeals first concluded that the 2 way in which multiple theft transactions are aggregated into a smaller number of criminal 3 charges is of constitutional magnitude because of a defendant's possible burden to defend 4 against "a multitude of minor charges" and because of the range of possible penalties that 5 could accompany different charging decisions. Id. at 589. Addressing the second 6 inquiry, the court determined that, although defendant did not provide evidence showing 7 that a coherent, systematic policy was lacking in this case, the prosecutor conceded that 8 the charging decision was unsystematic. Id. ("Although the prosecutor cited a criterion -- 9 clarity for the jury -- he did not argue that the criterion was a department-wide or 10 consistent policy[.]"). Moreover, although the prosecutor said that he considered a 11 number of factors in making charging decisions, the court determined that that was not 12 enough to satisfy the requirements in Freeland, because the "factors must remain 13 constant from case to case." Id. Therefore, the court reversed and remanded the case to 14 the trial court. Id. at 590. 15 16 II. ISSUES ON REVIEW On review, the state makes two arguments. The state first argues that see 243 Or App at 587 (noting that defendant could have been charged with as few as three counts or as many as one count for each of the alleged theft transactions), and that the prosecution's choice was not the result of a coherent, systematic policy. That analysis and result is consistent with Freeland, where the defendant was charged by what the court viewed as the permissible but less favorable grand jury indictment, although the prosecutor could have charged the defendant by means of the more favorable preliminary hearing procedure. 295 Or at 372-74. 5 1 application of the methodology set forth in Priest v. Pearce, 314 Or 411, 415-16, 840 P2d 2 65 (1992), demonstrates that Article I, section 20, does not apply to prosecutors' charging 3 decisions. Instead, the state argues, the text, history, and at least some of the case law 4 surrounding that provision demonstrate that Article I, section 20, was intended to be a 5 "narrow limitation on the legislature's authority to enact laws granting special privileges - 6 - largely economic privileges -- to individuals or classes of individuals." The state 7 reasons that, in this case, neither former ORS 164.115(5) (2007) nor any other statute at 8 issue grants privileges or immunities. In advancing its interpretation of Article I, section 9 20, the state invites this court to reconsider and significantly narrow its prior analysis of 10 both individual-based and class-based claims under Article I, section 20. To narrow that 11 analysis, the state advocates overturning some of this court's prior cases, including Clark 12 and Freeland. 13 Alternatively, the state argues, even if Article I, section 20, does apply to 14 individual-based claims arising from a prosecutor's charging decisions, a prosecutor is 15 not required to make those decisions according to a coherent, systematic policy. Rather, 16 the prosecutor merely has to show that the decision was rational and was not based on 17 impermissible criteria. Moreover, the state asserts, the prosecutor has to make that 18 showing only after the defendant has demonstrated that he or she in fact was treated 19 differently from similarly situated defendants. 20 Defendant responds that examination of Article I, section 20, using the 21 Priest methodology reveals that that provision was intended to prevent the government 22 from granting privileges or immunities in an inequitable or arbitrary way, which would 6 1 include a prosecutor arbitrarily aggregating theft transactions. In addition to relying on 2 the text and history of Article I, section 20, defendant traces this court's cases -- including 3 Clark, Freeland, and others -- to support her argument that the prosecutor violated 4 Article I, section 20, because he exercised his discretion to aggregate the theft 5 transactions in the absence of any policy to guide that discretion. Defendant argues that 6 the state has not met its burden of showing why this court should overturn its prior cases, 7 including Freeland. Moreover, defendant argues, even if this court, considering the facts 8 in Freeland anew, would have reached a different result, the rationale behind that 9 decision remains sound. 10 At the outset, we note that the Court of Appeals was correct to apply 11 Freeland in this case, because Freeland also involved an individual-based Article I, 12 section 20, challenge to prosecutorial discretion involving charging decisions. 13 Specifically, Freeland involved the prosecutor's discretion in determining whether to 14 charge a defendant by indictment or by preliminary hearing. 295 Or at 372-73. 15 Moreover, as discussed more fully below, although this court's application of Freeland 16 has not always been easy to square with the text of that opinion, the Court of Appeals 17 relied on the standard articulated in Freeland. That is, after the court determined that a 18 privilege or immunity was at issue, the court analyzed whether the prosecutor had applied 19 "'sufficiently consistent standards to represent a coherent, systematic policy[.]'" 7 1 Savastano, 243 Or App at 588 (quoting Freeland, 295 Or at 375).5 Although defendant 2 here did not identify anyone who had received more favorable treatment than she did, the 3 court read Freeland to dispense with that requirement: "[U]nlawful discrimination 4 occurs when the state distributes a benefit or burden in a standardless, ad hoc fashion, 5 without any 'coherent, systematic policy.'" Id. (quoting Freeland, 295 Or at 375). Rather 6 than requiring a showing of a similarly situated defendant who had been treated more 7 favorably, the court held that a defendant could prevail if he or she could "establish[] the 8 lack of criteria or, if there are criteria, the lack of consistent enforcement." Id. That 9 reading of Freeland seems correct, as the defendant there did not identify any particular, 10 similarly situated individual who was charged by means of a preliminary hearing rather 11 than by grand jury indictment -- although no one disputed that some defendants in 12 Multnomah County were charged by the former procedure. It was sufficient in Freeland 13 for the defendant to show that he might have received less favorable treatment than some 14 other defendants, and that the prosecutor's choice to provide that less favorable treatment 5 In undertaking the privilege or immunity analysis, the Court of Appeals reasoned, "[T]he state's decision has obvious and serious consequences; depending on how the prosecution chooses to aggregate the theft transactions, defendant could have been burdened, or not, with the need to defend against a multitude of minor charges, and could have faced possible penalties of varying seriousness. * * * [T]he privileges or immunities faced by defendant here are clearly of constitutional magnitude." Savastano, 243 Or App at 588-89. We agree with the Court of Appeals that the privileges or immunities at issue in this case are of constitutional magnitude and therefore do not address that issue further. 8 1 was not made pursuant to a coherent, systematic policy. 2 The Court of Appeals applied Article I, section 20, as interpreted in 3 Freeland, and concluded that, because the prosecutor admitted that no policy for 4 aggregating theft transactions existed, and because he did not indicate that the criteria that 5 he used in this case were consistently applied, defendant's Article I, section 20, rights 6 were violated. Id. at 589-90. We cannot say that the Court of Appeals' application of 7 Freeland was incorrect. 8 III. RECONSIDERATION OF FREELAND 9 That does not end our inquiry, however. Because defendant would prevail 10 under Freeland, as the Court of Appeals concluded, we must next address the state's 11 argument that application of the Priest methodology to Article I, section 20, demonstrates 12 that Freeland should be overruled because Article I, section 20, does not require a 13 prosecutor to apply a "coherent, systematic policy" to a charging decision like the one at 14 issue here. Thus, we turn to examining the meaning of Article I, section 20, and 15 specifically to whether it requires government entities to apply such a "policy" in 16 granting a privilege or immunity.6 6 Although we reconsider Freeland, as requested by the state, we reject the state's argument that we should reconsider and "realign the entirety of the court's Article I, section 20, analysis with the intent of the framers." This case does not require us to reconsider the application of Article I, section 20, to claims of discrimination against classes of individuals. Moreover, as discussed later, we reject the state's suggestions that Article I, section 20, applies only to the enactment of laws and not to their implementation and that it applies only to economic privileges. For those reasons, we agree with several of the arguments set out in the brief of amicus curiae ACLU 9 1 In undertaking the inquiry outlined in Priest, our goal is to identify the 2 historical principles embodied in the text of Article I, section 20, and to apply those 3 principles faithfully to modern circumstances as they arise. Coast Range Conifers v. 4 Board of Forestry, 339 Or 136, 142, 117 P3d 990 (2005). Put differently, the historical 5 inquiry set out in Priest invites us to identify the principles that Article I, section 20, was 6 intended to advance, while recognizing that the scope of that provision is not limited to 7 the historical circumstances surrounding its adoption. See Hewitt v. SAIF, 294 Or 33, 46, 8 653 P2d 970 (1982) (recognizing that Article I, section 20, extends protection to classes 9 of citizens who were not protected when Oregon adopted its constitution in 1859). 10 11 A. Text and History of Article I, Section 20 We begin with the text of Article I, section 20, which provides: 12 "No law shall be passed granting to any citizen or class of citizens privileges, or 13 immunities, which, upon the same terms, shall not equally belong to all citizens." 14 That section consists of an independent clause and a dependent clause. The independent 15 clause is directed to the legislature. It provides that "[n]o law shall be passed granting to 16 any citizen or class of citizens privileges, or immunities[.]" The dependent clause 17 qualifies what would otherwise be an almost absolute prohibition on lawmaking, because 18 lawmaking almost always involves or establishes some advantage or disadvantage for 19 some group of citizens. The dependent clause permits laws granting privileges or Foundation of Oregon, Inc., and find others unnecessary to address in this case. 10 1 immunities to any citizen or class of citizens as long as the privileges or immunities 2 belong "equally" to all citizens "upon the same terms." 3 At first blush, the two clauses in Article I, section 20, appear antithetical. 4 Read together, they prohibit a law granting a privilege or immunity to one citizen or a 5 class of citizens unless the privilege or immunity is available to all citizens upon the same 6 terms. As this court has recognized, the inclusion of the word "equally" resolves the 7 tension between the two clauses and permits the legislature to draw classifications among 8 citizens in granting privileges and immunities. Specifically, the court has recognized that 9 requiring privileges or immunities to be granted "equally" permits the legislature to grant 10 privileges or immunities to one citizen or class of citizens as long as similarly situated 11 people are treated the same. In re Oberg, 21 Or 406, 410-11, 28 P 130 (1891). 12 Accordingly, this court held in Oberg that a statute exempting sailors but no one else 13 from arrest for debt did not run afoul of Article I, section 20, because it "prescribe[d] the 14 same rule of exemption to all persons placed in the same circumstances." Id. at 408.7 7 In explaining why the legislature could conclude that other debtors were not similarly situated to sailors, the court offered three rationales. First, it explained that, at least on its face, the law was open ended: "[A]ny citizen desiring such immunity may have it in the words of the constitution, 'upon the same terms,' by becoming a sailor." Oberg, 21 Or at 408. Second, the court reasoned that, because different occupations may pose separate concerns, the legislature can enact laws that apply only to a single occupation without engaging in prohibited "class legislation." Id. at 409-10. The third rationale was a variation on the second. The court observed that, because the "object of the act * * * was to aid and extend our foreign commerce by protecting sailors and preventing such burdens or exactions from being laid upon shipping as would discourage vessels from frequenting our ports," Article I, section 20, did not prevent the legislature from enacting an exemption for sailors that advanced only that legislative objective. Id. 11 1 Thus, the text of Article I, section 20, places a limit on the legislature's ability to draw 2 classifications among citizens in enacting laws, but a requirement that the government 3 apply a coherent, systematic policy -- or any policy at all -- in all decisions involving its 4 citizens is not apparent from the text. 5 Similarly, the history of Article I, section 20, does not support a general 6 requirement that the government must make decisions according to a "systematic policy." 7 No record exists of any discussion of Article I, section 20, in the debates over the Oregon 8 Constitution. See Claudia Burton and Andrew Grade, A Legislative History of the 9 Oregon Constitution of 1857 - Part I (Articles I & II), 37 Willamette L Rev 469, 532-33 10 (2001). We know, however, that the provision was taken from the Indiana Constitution 11 of 1851, Clark¸ 291 Or at 236, 236 n 7, and that it finds its roots in early colonial 12 declarations of rights. See David Schuman, The Right to "Equal Privileges and 13 Immunities": A State's Version of "Equal Protection," 13 Vt L Rev 221, 223 (1988) 14 (tracing the history of equal privileges and immunities clauses). We also know that state 15 constitutions drafted between 1840 and 1880 sought to address abuses that included 16 "revealed fraud and corruption in public-land dealings and in the getting and granting of 17 franchises, subsidies, and rate privileges for turnpikes, canals, river improvements, toll 18 bridges, and, of course, especially railroads and street railways." James Willard Hurst, 19 The Growth of American Law: The Law Makers 241-42 (1950). at 410. 12 1 The historical usage of the phrase "privileges, or immunities" points in the 2 same direction. Before the revolution, one legal dictionary defined a "privilege" as 3 consisting of four elements: "(1) a benefit or advantage; (2) conferred by positive law; 4 (3) on a person or place; (4) contrary to what the rule would be in absence of the 5 privilege." Robert G. Natelson, The Original Meaning of the Privileges and Immunities 6 Clause, 43 Ga L Rev 1117, 1130 (2009) (summarizing prerevolutionary legal dictionary 7 definition). It also appears that 8 9 10 "'immunity' and 'privilege' were reciprocal words for the same legal concept. Because an immunity was a benefit, otherwise contrary to law, given to a person or place by special grant, it was a privilege." 11 Id. at 1133-34; accord Campbell v. Morris, 3 H & McH 535, 553 (Md 1797) (explaining 12 that the terms "[p]rivilege and immunity are synonymous, or nearly so"). 13 In the period leading up to the Civil War, the phrase "privileges and 14 immunities" ordinarily referred to state-created rights. See Kurt T. Lash, The Origins of 15 the Privileges or Immunities Clause, Part I: "Privileges and Immunities" as an 16 Antebellum Term of Art, 98 Geo LJ 1241, 1253, 1260-61 (2010).8 A grant of privileges 17 and immunities was not always viewed positively, however. During the Jacksonian era, 8 In Salem College & Academy, Inc. v. Emp. Div., 298 Or 471, 488 n 13, 695 P2d 25 (1985), this court explained that the phrase "privileges, or immunities" in Article I, section 20, is not limited to the fundamental rights that Justice Washington identified in Corfield v. Coryell, 6 Fed Cas 546 (1823). More recently, commentators have questioned whether Justice Washington's identification of the fundamental rights protected by the federal Privileges and Immunities Clause is consistent with other cases from that period recognizing that the federal clause protects a limited set of state-created rights. See Lash, 98 Geo LJ at 1271 (summarizing discussion). 13 1 newspaper editorials "commonly decried 'the possession of privileges or immunities, in 2 which ninety-nine hundredths of the community, by the very nature of their situation, are 3 denied all participation,' and they vilified the '"privileged order" * * * on whom the law 4 confers certain privileges or immunities not enjoyed by the great mass of the people.'" Id. 5 at 1256-57 (quoting editorials) (ellipses in Lash; footnote omitted). Consistent with that 6 concern, state constitutional privileges and immunities clauses drafted during and shortly 7 after that period sought to prevent the government from granting benefits only to a 8 favored few. See id. at 1257. Article I, section 20, was no exception to that trend. See 9 Clark, 291 Or at 236 (explaining that the "language [of Article I, section 20,] reflects 10 early egalitarian objections to favoritism and special privileges for a few"). 11 The history reveals that, in borrowing Article I, section 20, from Indiana, 12 the framers were acting in response to legislative grants of privileges to a favored few. 13 Viewed more abstractly, Article I, section 20, limited the criteria that government can use 14 in granting privileges and immunities. It is difficult, however, to go beyond that and find 15 in the history of that provision a requirement that executive agencies (or other branches 16 of government, for that matter) standardize their decision making. 17 The state argues that Article VII (Original), section 17, of the Oregon 18 Constitution provides additional historical context that clarifies how Article I, section 20, 19 interacts with the role of prosecutors. Article VII (Original), section 17, creates the office 20 of district attorney: 21 22 23 "There shall be elected by districts comprised of one, or more counties, a sufficient number of prosecuting Attorneys, who shall be the law officers of the State, and of the counties within their respective districts, and shall 14 1 2 perform such duties pertaining to the administration of Law, and general police as the Legislative Assembly may direct." 3 The state argues that prosecutors historically had discretionary authority regarding 4 whether and how to bring charges and that attempts to limit that discretion did not 5 emerge until well after the Oregon Constitution was adopted. Therefore, the state 6 reasons, the framers intended prosecutors to have discretion that would not be limited by 7 Article I, section 20. Defendant responds that the decision to create the office of district 8 attorney in no way indicates an intent to exempt district attorneys from the requirements 9 of Article I, section 20; in fact, defendant notes, the district attorneys' duties were to be 10 set by the legislature, and even the state accepts that the legislature is subject to Article I, 11 section 20. 12 The additional historical context of Article VII (Original), section 17, does 13 not change the historical analysis of Article I, section 20. Similarly to Article I, section 14 20, Article VII (Original), section 17, does not indicate an intent to require consistency or 15 policies in prosecutorial decisions; but neither does it indicate an intent for prosecutors to 16 have unbridled discretion outside the bounds of Article I, section 20, particularly given 17 the legislature's control over prosecutors' duties. 18 B. 19 20 Early Cases Interpreting Article I, Section 20 Having considered the text and history of Article I, section 20, we turn to this court's cases interpreting it. Most of this court's decisions have addressed challenges 15 1 to legislative classifications.9 As such, they did not address the issue raised here. We 2 begin with five of this court's early decisions involving individual-based claims, which 3 addressed either laws or executive decisions granting privileges or immunities to a single 4 citizen. We then discuss Clark and Freeland. Finally, we discuss this court's decisions 5 applying Freeland. 6 The first five decisions divide into two groups: One decision treated 7 Article I, section 20, as a counterpart to constitutional provisions prohibiting special or 8 local laws, see Altschul v. State, 72 Or 591, 596-97, 144 P 124 (1914), and the other four 9 decisions addressed situations where the government had granted one person a monopoly. 10 In Altschul, the legislature had granted one person (the plaintiff) the right to bring a suit 11 against the state to determine his interest in land held by the state. Id. at 595. The state 12 demurred to the plaintiff's suit on the ground that the statute authorizing that suit violated 13 Article IV, section 24, which prohibits "special act[s]" permitting suits to be brought 14 against the state; Article IV, section 23, which prohibits "special or local laws" in certain 15 classes of cases; and Article I, section 20. The court held that the statute violated all 9 For much of this court's history, it analyzed challenges to legislative classifications under Article I, section 20, and the Equal Protection Clause of the Fourteenth Amendment the same way. See City of Klamath Falls v. Winters, 289 Or 757, 769-70 n 10, 619 P2d 217 (1980), appeal dismissed, 451 US 964, 101 S Ct 2037, 68 L Ed 2d 343 (1981) (explaining that "[t]his court has consistently held that the scope of these two provisions is the same"). In Clark, the court interpreted Article I, section 20, independently from the federal constitution, while recognizing that "for most purposes analysis under Article I, section 20 and under the federal equal protection clause will coincide" in the result, if not the reasoning. 291 Or at 243. 16 1 2 three constitutional provisions. Id. at 596-97. The court's analysis under Article I, section 20, consisted of a single 3 sentence. It held that the statute "grant[ed] to the plaintiff [t]here a privilege which [was] 4 not extended to any other person in the state, and hence [was] in conflict with Article I, 5 section 20." Id. at 596. In grouping Article I, section 20, with Article IV, sections 23 and 6 24, the court appears to have treated the prohibition against laws granting a privilege or 7 immunity to "any citizen" as a species of constitutional provisions prohibiting special or 8 local laws. Cf. Jeffrey M. Shaman, Equality and Liberty in the Golden Age of State 9 Constitutional Law 31 (2008) (noting the relationship between privileges and immunities 10 clauses and clauses prohibiting special or local laws). To the extent that Altschul holds 11 that Article I, section 20, prohibits laws addressed to only a single person, that decision 12 seems inapposite when applied to executive acts, which, by definition, often require 13 acting only in individual cases. 14 As noted, the other four decisions addressed either statutes or agency 15 decisions giving one person a monopoly. The first and most comprehensive of those 16 decisions was White v. Holman, 44 Or 180, 74 P 933 (1904). In that case, the legislature 17 had authorized a board to issue licenses to run sailors' boarding houses to "any person, 18 firm, or corporation" that presented "satisfactory evidence * * * of the respectability and 19 competency of such applicant, and of the suitableness of his or their accommodations, 20 and of his or their compliance with all the provisions of this act." Id. at 182-83 21 (describing the statutory criteria for issuing licenses) (internal quotation marks omitted). 22 The board, however, had not followed those statutory criteria in denying a license to the 17 1 plaintiffs in White. Id. at 183. Rather, the board had denied the plaintiffs a license based 2 on the wishes of shipping companies, which had directed the board "to limit the business 3 to only one sailors' boarding house at Portland." Id. at 181-82. 4 The question, as this court framed it in White, was whether the board could 5 grant a monopoly consistently with Article I, section 20.10 In resolving that question, the 6 court explained that a board charged with implementing a statute "can exercise no greater 7 power than was possessed by the legislative assembly" in enacting it. Id. at 192. In 8 holding that a board could not grant a license to only one applicant, the court concluded 9 that the board had used a criterion that Article I, section 20, did not permit either the 10 legislature or the board to use. 11 Specifically, the court started from the premise that "[t]he keeping of a 12 sailors' boarding house is, in our opinion, a legitimate business, in the performance of 13 which any citizen may engage as a matter of common right[.]" Id. at 191. It followed 14 that the legislature could deny a license to run such a house only if it had a reasonable 15 ground for doing so. See id. at 191-92. On that point, the court explained that the 16 legislature could seek to deny licenses to persons who might take advantage of sailors' 17 susceptibility to temptations once they reached shore. See id. at 189-91 (describing, at 18 some length, the temptations to which sailors habitually fell prey while on shore). The 19 board, however, had not based its decision to deny a license to the plaintiffs on that 10 The court could have decided the case on the ground that the board had not followed the statutory criteria in denying the license. It did not take that course, however. 18 1 ground. Rather, the board arbitrarily had excluded what otherwise may have been 2 qualified applicants from receiving a license based only on the wishes of the shipping 3 industry. Id. at 192. Under Article I, section 20, this court held, neither the legislature 4 nor the board could do that. Id.11 5 The other three decisions held that neither the legislature nor a board may 6 grant an exclusive right to fish in one area of a navigable stream, because the right to fish 7 in those waters is held in common by all citizens. Monroe v. Withycombe, 84 Or 328, 8 341, 165 P 227 (1917); Eagle Cliff Fishing Co. v. McGowan, 70 Or 1, 15, 137 P 766 9 (1914), appeal dismissed, 248 US 589, 39 S Ct 5, 63 L Ed 435 (1918); Hume v. Rogue 10 River Packing Co., 51 Or 237, 259, 92 P 1065 (1907). Citing White and Article I, section 11 20, the court reasoned in Hume that granting an exclusive right to fish was comparable to 12 granting a monopoly, without any legitimate basis for giving only one person a right that 13 the people held in common. 51 Or at 259-60. Following Hume and Eagle Cliff Fishing, 14 the court reasoned in Monroe that, in light of the public's right to fish for salmon, neither 15 the legislature nor the Fish Warden could "authorize only one person to fish for salmon 16 for his own personal benefit and private profit without any advantage to the public." 84 17 Or at 338, 341. 18 White and Monroe thus recognized that Article I, section 20, applies not 11 The court reasoned that, because the legislature "could not create a monopoly of a legitimate business in which every person can engage of common right, a fortiori, its creatures, the board, are likewise prohibited from doing so." White, 44 Or at 192. 19 1 only to the legislature but also to other branches of government. Both White and Monroe 2 also made clear that, under Article I, section 20, the same limitations that apply to the 3 legislature in enacting laws apply to other government entities when they take action in 4 an individual case. That is, the government may not use a classification or criterion to 5 decide an individual case that the legislature could not use in enacting a law. Neither 6 White nor Monroe went beyond that, however. None of the early decisions interpreting 7 Article I, section 20, held or suggested that that section requires systematic consistency in 8 government decision making, which is the lynchpin of the Court of Appeals decision, 9 applying Freeland, in this case. Savastano, 243 Or App at 590 ("We require only 10 11 consistent, systematic criteria, and that those criteria be permissible."). One other case deserves discussion because it is sometimes cited as 12 precedent for the individual branch of Article I, section 20, analysis. In State of Oregon 13 v. Cory, 204 Or 235, 237, 282 P2d 1054 (1955), the defendant challenged a statute that 14 authorized increased punishment for persons convicted of two or more felonies within 15 five years. See Or Laws 1947, ch 585, §§ 1, 2. As amended in 1951, the statute provided 16 that, if, within two years of a defendant's conviction, the prosecutor learned that the 17 defendant previously had been convicted of a nonviolent felony, the prosecutor "'may, 18 immediately file an information accusing the person of the previous convictions.'" See 19 Cory, 204 Or at 237-38 (quoting the amended statute). 20 The defendant in Cory focused on the phrase "may * * * file." He argued 21 that giving a prosecutor discretion to charge him as an habitual offender violated "the 22 Equal Protection Clauses of the state and federal constitutions." Id. at 237. Relying on 20 1 an earlier case that had been decided on the basis of the federal Equal Protection Clause, 2 the court held that the statute "giv[ing] the district attorney unlimited authority to proceed 3 or not to proceed at all against a convicted felon in personal, nonviolent cases* * * [was] 4 unconstitutional." Id. at 239-40. 5 Cory's precedential value for interpreting Article I, section 20, is limited. 6 Although the court mentioned "the Equal Protection Clauses of the state and federal 7 constitutions," id. at 237, it undertook no independent analysis of Article I, section 20. 8 Rather, it relied on the decision issued one month earlier in State of Oregon v. Pirkey, 9 203 Or 697, 281 P2d 698 (1955), which had described the two constitutional provisions 10 as "similar limitations upon legislative action" and which had relied almost exclusively 11 on federal equal protection decisions in holding another statute unconstitutional. See id. 12 at 703-04. Cory's persuasive value also is suspect. The statute providing that prosecutors 13 "may * * * file" an information, which the court held unconstitutional in Cory, is difficult 14 to distinguish from the discretion that prosecutors customarily enjoy to file or not file 15 charges. Not only would Cory's reasoning, taken to its logical conclusion, render all 16 prosecutorial discretion to bring or not bring criminal charges unconstitutional, but the 17 United States Supreme Court unanimously has rejected the federal equal protection 18 theory on which both Pirkey and Cory rested. See United States v. Batchelder, 442 US 19 114, 124-25, 99 S Ct 2198, 60 L Ed 2d 755 (1979). 20 C. Clark and Freeland 21 Having considered the primary cases involving the individual branch of 22 Article I, section 20, that preceded Clark and Freeland, we turn to those decisions. In 21 1 Clark, the defendant raised two separate Article I, section 20, challenges. He argued 2 initially that the prosecutor had denied him a privilege afforded other defendants, because 3 the prosecutor had charged him by indictment rather than by means of a preliminary 4 hearing. The defendant argued that the state had violated his Article I, section 20, rights 5 because both procedures were available, one of them (the preliminary hearing) was a 6 "privilege" of constitutional magnitude, and the state had denied him that privilege. The 7 defendant contended that he was not required to show that any similarly situated 8 defendant had been given a preliminary hearing. Alternatively, he argued that the 9 prosecutor had violated Article I, section 20, when he granted immunity to two of his 10 11 potential codefendants but not to him. In resolving the defendant's arguments, the court explained that Article I, 12 section 20, is "a guarantee against unjustified denial of equal privileges or immunities to 13 individual citizens at least as much as against unjustified differentiation among classes of 14 citizens." Clark, 291 Or at 239. Regarding the denial of equal privileges or immunities 15 to an individual citizen, the court explained that Article I, section 20, calls for an 16 "analysis whether the government has made or applied a law so as to grant or deny 17 privileges or immunities to an individual person without legitimate reasons related to that 18 person's individual situation." Id. In stating the applicable standard in Clark, the court 19 focused on the legitimacy of the government's reasons in an individual case; that is, Clark 20 explained that an executive decision granting or denying a person privileges or 21 immunities "without legitimate reasons related to that person's individual situation" 22 would be an "unjustified denial of equal privileges or immunities to [an] individual 22 1 2 citizen[]." Id. Applying that standard, the court rejected the defendant's first argument -- 3 that the mere existence of discretion to charge a defendant by means of a preliminary 4 hearing or an indictment violated Article I, section 20. On that issue, the court held: 5 6 7 8 9 "Without a showing that the administration of [those two charging procedures] in fact denied [the] defendant individually, or a class to which he belongs, the equal privilege of a preliminary hearing with other citizens of the state similarly situated, the circuit court did not err in denying the motion to dismiss the indictment." 10 Id. at 243. Because the defendant had made no such showing regarding the prosecutor's 11 decision to proceed by indictment, the court had no need to decide -- and did not decide -- 12 when the "administration" of those procedures would violate the state equal privileges or 13 immunities clause. That is, because the defendant had not shown that he was denied "the 14 equal privilege of a preliminary hearing with other citizens of the state similarly 15 situated," the court did not further examine the prosecutor's decision to proceed by 16 indictment. Id.; see also id. at 242 (rejecting the conclusion that the difference between 17 "two available procedures necessarily represents a denial of equal protection of the laws, 18 regardless of showing which defendants receive one or the other procedure"). 19 In contrast, the court did review the merits of the defendant's immunity 20 argument because the defendant had shown that he in fact was treated differently from his 21 potential codefendants. As noted, the defendant argued that the prosecutor's decision to 22 grant immunity to two of his potential codefendants but not to him violated Article I, 23 section 20. Specifically, he contended that Article I, section 20, prohibited the prosecutor 24 from exercising discretion without previously stated standards. The court disagreed, 23 1 explaining that a prosecutor would comply with Article I, section 20, "as long as no 2 discriminatory practice or illegitimate motive is shown and the use of discretion has a 3 defensible explanation." Id. at 246. On that issue, the prosecutor explained that he had 4 treated the defendant differently from his potential codefendants because the defendant 5 had been the instigator of the crime, and the court held that the prosecutor's explanation 6 satisfied Article I, section 20. Id. Not only had the defendant failed to show a 7 discriminatory practice or motive, but the reason that the prosecutor gave was 8 "defensible." Id. 9 To be sure, Clark recognized that an individual citizen can argue under 10 Article I, section 20, that the prosecutor either acted for a discriminatory or illegitimate 11 motive or had no "defensible explanation" for his or her action. But defendant here does 12 not argue that the prosecutor aggregated the theft transactions based on a discriminatory 13 or illegitimate motive, and the Court of Appeals did not base its decision on the 14 prosecutor's failure to provide an explanation as "defensible" as the one provided in 15 Clark. In fact, the Court of Appeals noted that the prosecutor cited the criterion of jury 16 clarity, and the court did not indicate that the use of that criterion was impermissible 17 under Clark; however, in this case, the Court of Appeals went on to note that the 18 prosecutor "did not argue that the criterion was a department-wide or consistent policy." 19 Savastano, 243 Or App at 589. Thus, the Court of Appeals' decision was not grounded in 20 the interpretation of Article I, section 20, set forth in Clark. 21 22 Instead, the Court of Appeals in this case applied the interpretation of Article I, section 20, in Freeland, and we turn to that case. In Freeland, as in Clark, the 24 1 defendant was indicted by a grand jury and denied a preliminary hearing. In contrast 2 with the defendant in Clark, however, who had made no showing regarding the district 3 attorney's practice in submitting cases to the grand jury rather than having a preliminary 4 hearing, the defendant in Freeland adduced testimony from the district attorney and a 5 deputy district attorney regarding the factors they considered in making those decisions. 6 Those individuals testified that the district attorney's office had a written policy that, in 7 cases of rape or sexual assault and in cases involving youthful victims, the prosecution 8 generally would avoid preliminary hearings in deference to the victims. Freeland, 295 9 Or at 379. In other cases, the decision was entrusted to the deputy district attorney 10 assigned to the case, who would apply various criteria, including whether the defendant 11 was in custody, whether the crime was a property crime or a person crime, the 12 complexity of the case, the amount of judicial time required for a preliminary hearing, the 13 availability of witnesses, and many other factors. See id. at 379-80; see also State v. 14 Freeland, 58 Or App 163, 166-69, 647 P2d 966 (1982) (both summarizing testimony). 15 Both the district attorney and the deputy district attorney assigned to the case testified 16 that "the treatment of [the] defendant's case was no different from that of any other 17 similar case." Freeland, 58 Or App at 168-69. 18 19 The trial court applied what it stated was its "understand[ing]" of Clark and State v. Edmonson, 291 Or 251, 630 P2d 822 (1981),12 concluding that, in Multnomah 12 State v. Edmonson, 291 Or 251, 630 P2d 822 (1981) was a brief opinion issued the same day as Clark in which this court followed Clark and rejected a 25 1 County, the choice between proceeding by indictment or preliminary hearing did not 2 "'"uniformly rest on meaningful criteria that indeed make the privileges of a preliminary 3 hearing equally available to all persons similarly situated. "'" Freeland, 295 Or at 381 4 (quoting trial court opinion (quoting Edmonson, 291 Or at 254)). The trial court 5 explained that, because the decision was made at the discretion of the prosecutor and 6 based, at least in part, on "logistical" and "tactical" criteria, the "'choice of procedure is 7 administered "purely haphazardly or otherwise on terms that have no satisfactory 8 explanation"'" under Article I, section 20. Id. (quoting trial court opinion (quoting 9 Edmonson, 291 Or at 254)). 10 The Court of Appeals reversed, noting that although Clark and Edmonson 11 were susceptible of different readings, in its view those decisions did not "require clearly 12 delineated categories" that would determine the choice of indictment or preliminary 13 hearing in every case. Freeland, 58 Or App at 171. The Court of Appeals observed that 14 the criteria described at trial "[did] not, on their face, classify or treat persons differently defendant's claim that "the simple coexistence" of the grand jury and preliminary hearing procedures violated Article I, section 20. 291 Or at 253. As in Clark, the court stated that the defendant had failed to show how the administration of the choice of procedure denied him, as an individual or a class member, any privilege or immunity. Id. at 253-54. The case contains no legal analysis of the equal privileges or immunities provision beyond that in Clark, but does use different phrasing than Clark in requiring that government actions must "uniformly rest on meaningful criteria" that make the benefit equally available to all similarly situated people and prohibiting privileges that are administered "purely haphazardly or otherwise on terms that have no satisfactory explanation" under Article I, section 20. Id. The trial court in Freeland relied on those statements, as did this court in affirming the trial court. Freeland, 295 Or at 381. 26 1 on the basis of personal characteristics or as members of a disfavored minority or, for that 2 matter, any impermissible class." Id. at 172. Indeed, based on the record, the court 3 concluded, "Defendant ha[d] not shown that he was treated differently from other 4 defendants similarly situated (at least in Multnomah County) * * *." Id. 5 On review, this court reversed the Court of Appeals. The court recognized 6 that the case called for "a further analysis" of Article I, section 20, than the court had 7 undertaken in Clark. Freeland, 295 Or at 372. In Freeland, the defendant did not argue, 8 as the defendant in Clark had, that the existence of discretion to charge a defendant by 9 indictment or preliminary hearing was sufficient, without more, to violate Article I, 10 section 20. Rather, he "challenge[d] * * * the terms upon which the prosecution based its 11 refusal of a preliminary hearing to [him]." Id. This court allowed review "to address the 12 issues of administering preliminary hearings 'upon the same terms' for similarly situated 13 defendants" that it had not been able to reach in its earlier cases. Id. at 369. The court 14 thus confronted the defendant's challenge to the prosecutor's administration of the two 15 different charging procedures. 16 In resolving that challenge, the court focused on whether, in the absence of 17 prior rulemaking, the individual decisions made by the district attorney's office reflected 18 a sufficiently consistent pattern or policy to satisfy Article I, section 20. Relying on 19 Clark and Edmonson, the court held that Article I, section 20, prohibits "'[h]aphazard' or 20 standardless administration, in which the procedure is chosen ad hoc without striving for 21 consistency among similar cases." Id. at 374. The question, the court stated, was 22 whether the prosecutor's decision of which charging procedure to use "adhere[d] to 27 1 sufficiently consistent standards to represent a coherent, systematic policy, even when not 2 promulgated in the form of rules or guidelines." Id. at 375 (emphasis added).13 Although 3 the defendant did not complain of discrimination against him because of any personal 4 characteristic and did not identify any particular person similarly situated to him who was 5 given a preliminary hearing when he was not, this court nevertheless held that the case 6 7 8 9 10 11 "[fell] within the principle that equal treatment may not be denied 'haphazardly' by ad hoc decisions that * * * do not 'uniformly rest on meaningful criteria that indeed make the privileges of a preliminary hearing equally available to all persons similarly situated, or, in the constitutional phrase, "upon the same terms."'" Id. at 381 (quoting Edmonson, 291 Or at 254 (quoting Article I, section 20)).14 12 Elsewhere in the opinion, the court appeared to respond to the state's 13 argument -- and the testimony from the district attorney's office -- that the defendant had 14 failed to show that he was denied a privilege that a similarly situated person had been 13 The court also observed that some criteria for making the procedural decision -- even apart from discrimination for or against an identifiable social group -may be "valid" or "permissible," and other criteria may not be. Freeland, 295 Or at 373 (identifying "permissible" criteria); id. at 375 (considering whether reasons for using one procedure rather than another would be "valid"). And some aspects of the court's opinion suggest that certain of the considerations identified by the district attorney's office may not be permissible criteria. Id. at 381-82 (questioning reliance on, among other things, insufficient time to complete a preliminary hearing). However, the unambiguous holding of Freeland, as discussed in the text, is that the potential for haphazard and inconsistent application of the criteria is sufficient to constitute an Article I, section 20, violation. 14 Justice Jones dissented, arguing, inter alia, that the defendant had failed to show that the prosecutor's decision to proceed by indictment was based on some "discriminatory motive" or "other arbitrary classification" or that he "was singled out, not dealt with on substantially the 'same terms' as others similarly situated or was the victim of a 'haphazardly' arrived at ad hoc decision." Freeland, 295 Or at 394-96 (Jones, J., dissenting). 28 1 granted. Rather than requiring a showing of unequal treatment, the court seemed instead 2 to take the position that, in the absence of a "coherent, systematic policy" -- and given the 3 wide range of factors identified by the district attorney's office as relevant to the decision 4 -- the risk of unequal treatment was sufficient to violate Article I, section 20. For 5 example, the court stated that, unless "sufficiently consistent standards" are applied, the 6 "administration of the system 'upon the same terms' toward similarly situated defendants 7 cannot be assured." Id. at 375. Similarly, in describing the potential for treating similarly 8 situated defendants differently because of the myriad criteria identified by the district 9 attorney's office, the court observed that one person accused of participating in a robbery 10 "might" be afforded a preliminary hearing and another, under identical circumstances, 11 "might" be denied one because the assigned deputy district attorney did not wish to 12 subject his witnesses to cross-examination. Id. at 381. Again, in the court's view, the 13 requirement of consistently applied standards would prevent that potential problem. 14 Thus, the "coherent, systematic policy" test announced by the court apparently was 15 intended as a prophylactic rule to prevent the possibility of differential treatment of 16 similarly situated persons. 17 Applying the standard that it had articulated, this court in Freeland 18 concluded that the district attorney's decision to proceed against the defendant by way of 19 indictment, rather than preliminary hearing, violated Article I, section 20, and it affirmed 20 the trial court's dismissal of the indictment. Id. at 381, 384. 21 D. 22 The Post-Freeland Cases Freeland was the first case to hold that Article I, section 20, requires, in 29 1 addition to the use of permissible criteria, evidence of a policy that standardizes an 2 agency's exercise of its discretion. Since Freeland, this court has reiterated the latter 3 requirement, but it has never found that any government agency has violated it. See, e.g., 4 City of Salem v. Bruner, 299 Or 262, 270-71, 702 P2d 70 (1985).15 Indeed, no decision 5 since Freeland -- other than the Court of Appeals decision in this case -- has held that 6 government action in providing a burden or a benefit to a particular individual violated 7 Article I, section 20, because it was made in a "standardless, ad hoc fashion, without any 8 'coherent, systematic policy.'" Savastano, 243 Or App at 588 (stating that test and 9 quoting Freeland). Moreover, this court's post-Freeland decisions involving 10 prosecutorial discretion and Article I, section 20, are not always easy to reconcile with 11 the reasoning in Freeland. We turn to a consideration of several of those cases. 12 13 In State v. Farrar, 309 Or 132, 786 P2d 161, cert den, 498 US 879 (1990), a death penalty case, the defendant argued that the district attorney's office had refused to 15 In Bruner, for example, the court reiterated the reasoning in Freeland and stated that a government decision to charge a defendant in one, rather than the other, of two different courts, each of which had a different appeals procedure, "present[ed] a choice of 'privileges' which must be made by defensible criteria, that is, by criteria which ensure consistency in treatment." 299 Or at 270. The court's holding was more limited, however. The defendant in Bruner had argued only that an officer's discretion to charge him into municipal or circuit court, with the resulting selection of different routes of appellate review, was sufficient by itself to establish a violation of Article I, section 20, and the court rested its holding on the more limited ground that, as in Clark, the existence of discretion to proceed in one of two ways, standing alone, did not give rise to an equal privileges or immunities violation. Id. at 271. Not only was the preceding discussion of Freeland unnecessary to the court's holding and thus dicta, but it also imposed a requirement of "ensur[ing] consistency" in addition to "defensible criteria, id. at 270, which was absent in Clark. 30 1 enter into plea negotiations with him on the same terms that it had entered into plea 2 negotiations with other persons charged with aggravated murder. 309 Or at 138-42. The 3 defendant observed that, in three aggravated murder cases, the district attorney had 4 considered a shifting mix of factors, that not all the same factors applied in each case, and 5 that even when the same factors applied the district attorney had sometimes given them 6 different weight. See id. at 139-40.16 This court rejected the defendant's Article I, section 7 20, challenge, reasoning that in each case the factors that the district attorney considered 8 "had a rational relation to the prosecutorial decision" whether to engage in plea 9 negotiations and that the district attorney's decision in each case "was reasonable under 10 the circumstances." Id. at 141. The court concluded that the district attorney had offered 11 a "clear, rational, consistent, and consequently sufficient justification for treating [the] 12 defendant differently from [the other two persons charged with aggravated murder]." Id. 13 Implicit in Farrar was the recognition that many decisions that prosecutors 14 and other executive officials make involve multiple variables. Not all decisions involve 15 the same variables, the variables in each case may cut in different directions, and the 16 priority or weight that each variable deserves may differ from one case to the next. 16 Among other things, the district attorney considered the defendant's age, prior record, mitigating evidence, and the strength of the proof in deciding whether to enter into plea negotiations. Farrar, 309 Or at 139. In concluding that those considerations were permissible, the court reasoned that the "district attorney's actions were not based on class discrimination, animus to [the] defendant or his attorney, or on concerns collateral to fair prosecution of [the] defendant for aggravated murder." Id. at 140-41. 31 1 Although a prosecutor's different treatment of similarly situated persons may not be 2 "merely 'haphazard,' i.e., without any attempt to strive for consistency among similar 3 cases," id. at 140, it need only be "rational and consistent." Id. at 141. Instead of the 4 "coherent, systematic policy" test of Freeland, this court in Farrar applied a less rigorous 5 standard that focused on rational, reasonable, and consistent decisions. 6 A second decision, State v. Buchholz, 309 Or 442, 788 P2d 998 (1990), 7 looks in the same direction. In that case, the prosecutor did not offer a plea agreement to 8 the defendant but did offer a plea agreement to a codefendant. 309 Or at 446-47. In 9 response to the defendant's argument that the district attorney's office lacked a coherent, 10 systematic policy for offering plea bargains, this court noted that ORS 135.415 specified 11 the criteria for offering a plea bargain and reasoned that those statutory criteria provided 12 "consistent standards representing a coherent, systematic policy" regarding plea 13 agreements. Id. at 445, 447 (citing ORS 135.415). 14 Similarly to Farrar, the court's reasoning in Buchholz is not easy to square 15 with Freeland. The statute on which the court relied in Buchholz listed multiple criteria 16 that "may be take[n] into account," permitting a prosecutor to apply one criterion in one 17 case and another criterion in a different case, which could lead to different results being 18 reached in similar cases. Beyond that, the statute did not limit the criteria (or 19 "considerations," as the statute called them) that a prosecutor could take into account; it 20 explicitly recognized that prosecutors could take into account additional, unspecified 21 considerations in deciding whether to offer a plea bargain. See ORS 135.415 (providing 22 that a prosecutor "may take into account, but is not limited to, any of the following [six] 32 1 considerations"); cf. Schmidt v. Mt. Angel Abbey, 347 Or 389, 409, 223 P3d 399 (2009) 2 (Walters, J., concurring) (explaining that "the phrase 'including but not limited to,' 3 followed by a list of examples, [often] conveys an intent to illustrate or to broaden, rather 4 than to limit the meaning of a general term"). Finally, the statute provided no guidance 5 as to how a prosecutor should weigh or prioritize those considerations when the decision 6 whether to offer a plea agreement turned on multiple conflicting considerations. 7 If a coherent, systematic policy that guides agency decision making is a 8 constitutional requirement, the nonexclusive list of statutory considerations in ORS 9 135.415 did little to advance it. Despite those problems, the court in Buchholz cited 10 Freeland and held that the existence of those statutory considerations, without more, 11 represented a coherent, systematic policy that satisfied Article I, section 20.17 It is 12 difficult to reconcile Buchholz with the reasoning in Freeland, which envisioned either 13 prior rulemaking that standardized prosecutorial discretion or the ability to identify a 14 consistent practice retrospectively. See Freeland, 295 Or at 378 (noting that either 15 "internal rules or guidelines" or "consistency in practice" could satisfy Article I, section 16 20, requirements). In our view, Buchholz is best understood as standing for the 17 The defendant in Buchholz did not argue that the standards in ORS 135.415, standing alone, were not consistent standards representing a coherent, systematic policy, and instead challenged the application of those standards. 309 Or at 447. Nonetheless, the court stated that the prosecutor's application of one of the criteria in the statute to the two codefendants, without further explanation regarding his practice in other cases, was sufficient to satisfy the requirement in Freeland of a "coherent, systematic policy." Id. 33 1 proposition that Article I, section 20, requires that the considerations that a prosecutor 2 takes into account in an individual case have "a rational relation to the * * * decision" and 3 that the decision in each case be "reasonable under the circumstances." See Farrar, 309 4 Or at 141. 5 This court again rejected a claim that a prosecutor improperly had refused 6 to consider a plea offer in another death penalty case, State v. McDonnell, 313 Or 478, 7 492, 837 P2d 941 (1992). The prosecutor testified that because the facts of the 8 defendant's case fit one of the aggravated murder categories and were "strong," he 9 charged the defendant with aggravated murder and thereafter refused to plea bargain. Id. 10 at 490. He also analyzed the case in terms of the nonexclusive factors identified in ORS 11 135.415, which were held in Buchholz to meet the requirements of Article I, section 20. 12 Id. at 492. The parties disputed whether the prosecutor's conduct demonstrated a 13 "systematic policy" concerning plea bargaining aggravated murder cases. This court 14 concluded that "the decision not to plea bargain in aggravated murder cases was based on 15 rational and proper grounds * * *." Id. at 491. Although the court quoted the "coherent, 16 systematic policy" language from Freeland and found that the prosecutor's conduct met 17 that standard, it also quoted and followed the arguably looser standard of Farrar and 18 Buchholz, which upheld decisions on plea bargains that were consistent with ORS 19 135.415 and were "reasonable" and "rational." See McDonnell, 313 Or at 490-92 (citing 20 and quoting Farrar and Buchholz). 21 E. 22 The State's Arguments Regarding Article I, Section 20 With that background in mind, we turn to the state's argument that Article I, 34 1 section 20, applies only to the legislature and only to economic benefits. That argument 2 sweeps too broadly. For over 100 years, this court has recognized that Article I, section 3 20, applies not only to the legislature but also to other branches of government. See, e.g., 4 Clark, 291 Or at 239 (detailing application of Article I, section 20, to "administration of 5 laws under delegated authority" and prosecutorial discretion); White, 44 Or at 192 ("[T]he 6 board of commissioners for licensing sailors' boarding houses can exercise no greater 7 power than was possessed by the legislative assembly[.]"). Indeed, in State v. Stevens, 8 311 Or 119, 125, 806 P2d 92 (1991), the court assumed that Article I, section 20, applies 9 to the judicial branch, but held that no violation had been shown. 10 In applying Article I, section 20, moreover, this court has similarly 11 recognized that "privileges, or immunities," are not limited to economic benefits. See, 12 e.g., Clark, 291 Or at 241 ("There is no question that the opportunity of a preliminary 13 hearing is a 'privilege' within the meaning of the constitutional guarantee[.]"); State v. 14 Reynolds, 289 Or 533, 541, 614 P2d 1158 (1980) (applying Article I, section 20, to 15 prosecutor's charging decision). The state is correct that many early privileges or 16 immunities cases involved monopolies or other economic benefits, but nothing in the 17 words of the provision or the historical definitions of those words indicates that they do 18 not also apply to noneconomic privileges or immunities conferred by the government. 19 We accordingly disagree with the state's argument that Article I, section 20, 20 places no limitation on the decision that the prosecutor made. We conclude, as the court 21 did in White, that Article I, section 20, places the same limitation on other branches of 22 government that it places on the legislature: An executive agency cannot use a criterion 35 1 in acting in an individual case that the legislature cannot use in enacting a law. See 2 White, 44 Or at 192. That same limitation applies even if no economic benefit is 3 involved. See Clark, 291 Or at 241. 4 We recognize, however, as the state argues, that Freeland goes beyond 5 White and Clark and imposes the additional requirement of a consistently applied 6 "coherent, systematic policy" to guide every instance of agency decision making. The 7 parties' competing positions require us to decide whether, in grounding that requirement 8 in Article I, section 20, the decision in Freeland went beyond the text of Article I, section 9 20, its history, and the cases interpreting it. 10 In considering that question, we note that Freeland stands alone. No case 11 that preceded Freeland announced the requirement of a "coherent, systematic policy" that 12 Freeland drew from Article I, section 20. Similarly, although a number of cases coming 13 after Freeland have cited that standard, no case decided after Freeland has held that an 14 executive agency (or the legislature or judiciary) violated the requirement that the court 15 recognized in Freeland, and the reasoning in those cases is sometimes difficult to square 16 with Freeland's. As explained above, Farrar and Buchholz did not require a "coherent, 17 systematic policy," as Freeland did, for the court to conclude that an official's decision to 18 treat one person differently from another in an individual case was "defensible." See 19 Clark, 291 Or at 246. Similarly, in McDonnell, the court cited the "coherent, systematic 20 policy" standard, but also held that the prosecutor's refusal to plea bargain was consistent 21 with Article I, section 20, because it was "based on rational and proper grounds" and was 22 consistent with nonexclusive factors set out in statute. 313 Or at 491-92. 36 1 Not only does Freeland appear to go further, by requiring a coherent and 2 systematic policy, than the cases that both preceded and followed it, but the support it 3 identified for the conclusion that it reached is not immune from question. As noted, the 4 court recognized in Freeland that the issue before it required "further analysis" than the 5 court undertook in Clark, but it appeared to treat the holding that it reached as if it were a 6 foregone conclusion from the decision in Clark. The holding in Clark is narrow, 7 however. The court neither considered nor decided in Clark the issue that it later 8 resolved in Freeland, and it is difficult to find support in Clark's holding for the 9 conclusion that Freeland reached. Moreover, the standards that the court announced in 10 Clark can (and we think should) be read consistently with this court's earlier decisions: A 11 prosecutor may not use criteria in administering charging procedures that the legislature 12 could not use in enacting laws. As the court explained in Clark, in making an individual 13 decision, a prosecutor will comply with Article I, section 20, "as long as no 14 discriminatory practice or illegitimate motive is shown and the use of discretion has a 15 defensible explanation." 291 Or at 246. 16 We acknowledge that some of the statements in Clark -- and in Edmonson, 17 which relied upon and paraphrased Clark -- can be read more broadly, and that is how the 18 court interpreted them in Freeland. However, in doing so, the court in Freeland read 19 more into those statements than was warranted by the issue that Clark resolved, and the 20 court's reading of those statements went beyond the text, history, and other cases 21 interpreting Article I, section 20. Freeland adopted a broad prophylactic rule that might 22 well further the rights protected by Article I, section 20, and protect against their 37 1 2 violation. In our view, however, that rule is not required by Article I, section 20. Finally, we note that, in explaining why requiring consistency in agency 3 decision making was compatible with prosecutorial discretion, the court in Freeland 4 discussed at some length administrative law decisions and quoted from an article 5 reasoning that administrative law principles should be applied to prosecutorial decision 6 making. See Freeland, 295 Or at 376-78. To the extent that the court viewed Article I, 7 section 20, as requiring the consistent, systematic policies characteristic of administrative 8 regulatory schemes, we think it went farther than the text of that provision, its history, 9 and the cases interpreting it warrant. We do not disagree with some of the statements in 10 Freeland (and the commentators and administrative law principles discussed there) about 11 the value of policies to guide prosecutorial discretion and limit the potential for 12 discriminatory enforcement or different treatment of similarly situated persons. And the 13 articles, studies, and guidelines cited in Freeland provide models for improving the 14 prosecutorial function and the administration of justice that might profitably be adopted 15 by policy or statute. For the reasons discussed, however, we conclude that the failure to 16 adopt or adhere to such policies does not violate Article I, section 20. 17 We also reject the related notion in Freeland that a defendant can satisfy his 18 or her initial burden in bringing an individual-based claim under Article I, section 20, 19 merely by showing that the government lacks a coherent, systematic policy. Without any 20 showing by the defendant that he was denied a privilege or immunity that was granted to 38 1 a similarly situated person, the court required the state to show a "coherent, systematic 2 policy" and the absence of "haphazard" administration.18 Those requirements, the court 3 said, would "assure[]" equal treatment and prevent inconsistent application of the policy 4 that "might" otherwise occur. Freeland, 295 Or at 375, 381. Freeland, in effect, relieved 5 the defendant of the burden of demonstrating a prima facie violation of Article I, section 6 20, by showing that he or she was treated differently than a similarly situation person, 7 and instead required the state to prove that it had adopted and uniformly applied policies 8 that would prevent such violations. Cf. Wayne R. LaFave et al., 4 Criminal Procedure 9 § 13.4(b), 172 (3d ed 2007) (defendant bears burden of demonstrating selective or 10 discriminatory enforcement); see also Freeland, 295 Or at 397 (Jones, J., dissenting) 11 (defendant bears burden of making prima facie showing of differential treatment). 12 Freeland did not identify any constitutional or statutory basis for imposing that obligation 13 on the state -- in the absence of any showing by the defendant of discrimination or the use 14 of improper criteria -- and we are aware of none. 15 16 17 18 19 20 This court explained in Stranahan v. Fred Meyer, Inc., 331 Or 38, 53, 11 P3d 228 (2000), that "[t]he question [whether to overrule a prior constitutional decision] is one of stare decisis, a doctrine that attempts to balance two competing considerations. On one hand is the undeniable importance of stability in legal rules and decisions. That consideration applies with particular force 18 The dissent in Freeland also made this point, noting that it had found no other judicial decision that placed the burden on prosecutors to make such a showing. 295 Or at 394-95 (Jones, J., dissenting). 39 1 2 3 4 5 6 7 8 in the arena of constitutional rights and responsibilities, because the Oregon Constitution is the fundamental document of this state and, as such, should be stable and reliable. On the other hand, the law has a similarly important need to be able to correct past errors. This court is the body with the ultimate responsibility for construing our constitution, and, if we err, no other reviewing body can remedy that error. See Hungerford v. Portland Sanitarium, 235 Or 412, 415, 384 P2d 1009 (1963) ('[t]he pull of stare decisis is strong, but it is not inexorable')." 9 We do not lightly decide to overrule an earlier constitutional decision. See Farmers Ins. 10 Co. v. Mowry, 350 Or 686, 693-94, 261 P3d 1 (2011) (reviewing the considerations that 11 will warrant overruling an earlier constitutional precedent). In our view, however, 12 application of the court's methodology in Priest for interpreting constitutional provisions 13 persuades us that Freeland went beyond the cases that preceded it, and Freeland's 14 holding finds little support in the text or history of Article I, section 20. Moreover, the 15 cases that have followed Freeland have eroded its precedential value and effectively 16 returned to the more limited and historically grounded principle stated in Clark. 17 In these circumstances, we conclude that it is appropriate to overrule the 18 decision in Freeland and reaffirm the decision in Clark. To bring an individual-based 19 claim under Article I, section 20, a defendant must initially show that the government "in 20 fact denied defendant individually * * * [an] equal privilege * * * with other citizens of 21 the state similarly situated." Clark, 291 Or at 243. An agency or official's decision will 22 comply with Article I, section 20, "as long as no discriminatory practice or illegitimate 23 motive is shown and the use of discretion has a defensible explanation" in the individual 24 case. Id. at 246. An executive official's decision will be "defensible" when there is a 25 rational explanation for the differential treatment that is reasonably related to the official's 40 1 2 task or to the person's individual situation. See id. at 239, 246. To summarize, the Priest analysis -- and particularly this court's long 3 history of cases interpreting Article I, section 20 -- confirms the conclusion that that 4 provision applies to government actions generally, including prosecutors making 5 charging decisions. Article I, section 20, does not require consistent adherence to a set of 6 standards or a coherent, systematic policy, as defendant contends; that provision does, 7 however, require government to treat similarly situated people the same. A government 8 decision-maker will be in compliance with Article I, section 20, as long as there is a 9 rational explanation for the differential treatment that is reasonably related to his or her 10 official task or to the person's individual situation. 11 12 IV. APPLICATION OF ARTICLE I, SECTION 20 We return to the facts of this case, viewed in light of this court's 13 interpretation of Article I, section 20, in Clark. The prosecutor aggregated the theft 14 transactions into 16 counts of theft, organizing the charges by month to provide clarity 15 for the jury. Defendant does not challenge the prosecutor's aggregation of the theft 16 transactions on grounds that the prosecutor engaged in a discriminatory practice or based 17 his decision on impermissible criteria, such as race or gender. Nor does defendant 18 challenge the prosecutor's decision because the prosecutor in fact treated defendant 19 differently from a similarly situated individual or inconsistently applied a policy to 20 defendant. Instead, defendant asserts that the prosecutor acted arbitrarily when he 21 aggregated the theft transactions by month, because there was no policy for aggregating 22 theft transactions. 41 1 When a defendant does not demonstrate differential treatment, but, as here, 2 claims only that the prosecutor acted arbitrarily in a manner that denied the defendant a 3 privilege or immunity, the prosecutor violates the defendant s Article I, section 20, rights 4 if the prosecutor lacks a rational basis for his or her decision. On this record, defendant's 5 assertion that the prosecutor's decision was arbitrary because it was not based on a 6 coherent, systematic policy for aggregating theft transactions fails under Clark and the 7 cases that preceded it. Like the prosecutor's decision to grant immunity to one potential 8 codefendant but not to another in Clark, and the similar decisions in Farrar, Buchholz, 9 and McDonnell, the prosecutor here did have a rational basis for his decision. As the 10 prosecutor explained, he aggregated the theft transactions by month for purposes of jury 11 understanding of the case. That was a reasonable and permissible basis for his action 12 and, in this case, satisfies the requirements of Article I, section 20. 13 14 The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed. 42
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