by Mark Wilson

The Oregon Supreme Court held that a legislative reduction of voter-approved mandatory sentences for repeat property offenders that was passed by a mere simple majority was not invalid.

Since 1902, the Oregon Constitution has recognized a dual system of legislation and “two law-making bodies, the legislative assembly on the one hand and the people on the other, which in the exercise of legislative power are coequal and co-ordinate.” See: State ex rel Carson v. Kozer, 126 Or 641, 644, 270 P 513 (1928). “Either of which ... may undo the work of the other.” See: Keirnan v. Portland, 57 Or 454, 480, 112 P 402 (1910).

While Oregon voters may pass ballot measures enacting, amending or repealing statutory or constitutional provisions, the Legislative Assembly also has the power to repeal or amend a statute that was enacted by the voters as long as it does so “in a manner provided by law.”

Since the late 1980s, Oregon crime victims and prosecutors have prolifically used the initiative process to enact a broad range of tough-on-crime laws. The most notorious (and damaging) of which being the 1994 adoption of Ballot Measure 11, requiring harsh mandatory prison terms for defendants as young as age 15 who are convicted of any of a long list of crimes.

Seeking to prevent Oregon lawmakers from ever softening Measure 11’s harsh mandatory sentences, proponents shrewdly packaged their proposal with another initiative.

Ballot Measure 10 amended the Oregon Constitution to require “a two-thirds vote of all members elected to each house” of the Oregon Legislature “to pass a bill that reduces a criminal sentence approved by the people” through the initiative process. See: Or. Const., Art. IV, § 33. Measure 10 passed by 64.7 percent of Oregon voters and Measure 11 passed by 65.6 percent.

For more than a decade after its 1995 enactment, Measure 10 essentially bulletproofed every tough sentencing law that Oregonians passed. No politician can stomach looking “soft on crime” as they “thwart the will of the people” by calling for shorter prison sentences. While it was virtually impossible to find even a simple majority willing to do so for many years, reform seemed impossible as a super-majority was definitely out of the question.

In 2008, Oregon crime victims put another draconian sentencing law on the ballot that cops proudly anointed the “son of 11.” Ballot Measure 61 required harsh mandatory minimum sentences for repeat property offenses. Oregon lawmakers countered with a somewhat less harsh — and expensive — proposal, increasing ORS 137.717’s minimum sentences through Ballot Measure 57.

Notably, Measure 57 increased mandatory minimum sentences from 13 to 18 months for theft in the first degree (Theft 1) and from 19 to 24 months for identity theft. It also authorized a two-month increase of those minimums for each prior property offense conviction. Before the enactment of Measure 57, only those with four prior property offense convictions were eligible for the mandatory minimum sentence. Measure 57 required the mandatory prison term after just two prior convictions.

Measure 57 was estimated to “require additional state spending of approximately $9 million in the first year, $74 million in the second year, $79 million in the third year, $106 million in the fourth year, and more than $143 million each year after that,” according to the Official 2008 General Election Voters’ Pamphlet. “The state will borrow $314 million from 2010 to 2017 to build new prison space. The state will repay those amounts plus interest of $203 million over 25 years.”

In contrast, Measure 61 would require “additional state spending of $8 million to $10 million in the first year, $67 million to $88 million in the second year, $122 million to $178 million in the third year, $164 million to $247 million in the fourth year, and $161 million to $274 million in each year after that,” according to the Official 2008 General Election Voters’ Pamphlet. It would “require the state to borrow between $1.1 billion and $1.3 billion to build new prisons between 2010 and 2017. The state will repay those amounts plus interest of $709 million to $844 million over 25 years.”

Oregonians chose Measure 57’s slightly lower price tag, passing the initiative by 61.4%, while rejecting Measure 61, by 51.1 %. Yet, recognizing the devastating fiscal impact of Measure 57 as Oregon and the nation slid into a deep economic downturn, Oregon lawmakers sought to suspend its implementation through the enactment of House Bill (HB) 3508(2009).

Section 8 of the bill amended ORS 137.717 as of February 15, 2010 to read as it had before Measure 57 was enacted. Section 11 then amended Section 8 to reinstate the Measure 57 sentences on January 1, 2012. The bill was enacted in June 2009 by a two-thirds majority.

This change did little to blunt the economic impact of Measure 57. As such, lawmakers introduced HB 3078 during the 2017 Legislative session, reducing the mandatory prison term for Theft I and Identity Theft to 13 months.

“House Bill 3078 is not about protecting victims,” complained Steve Doell, president of Crime Victims United of Oregon. “It’s about cutting sentences. It’s about saving money. It’s about shifting the cost of crime away from the state and onto the backs of the businesses and individuals who are victimized.”

Measure 57 co-author and Clackamas County District Attorney John Foote echoed Doell: “You’ll regret it, and Oregon will regret it,” he warned. HB 3508 “takes us back to the 1980s.”

Nevertheless, HB 3078 (2017) passed both chambers of the Oregon legislature by a simple majority and was to become effective January 1, 2018. Foote had other plans.

On November 15, 2017, Foote and two crime victims brought suit in state court, seeking “a judicial declaration that House Bill 3078(2017), ... was not lawfully enacted and thus is void and unenforceable.” Foote claimed that HB 3078 violated Article IV, section 33 of the Oregon Constitution, because it reduced a voter-approved criminal sentence by less than a two-thirds majority in both chambers of the Legislature.

Critics argued that the plaintiffs appeared to lack standing to bring the suit. “Your legal rights have not been affected simply because you are a voter or a taxpayer,” said John Parry, a Lewis & Clark Law School professor and associate dean of faculty. He noted that Foote could raise his objections to the reduced sentences by challenging HB 3078’s constitutionality in individual criminal cases.

Theft case

The Lincoln County case of Santiago Maximo Vallin is a prime example. In June 2017, Vallin was charged with Theft I. The Measure 57-amended version of ORS 137.717, which was in effect at that time, required an 18-month mandatory minimum sentence, which increased to 22 months due to Vallin’s prior convictions.

After the Theft I mandatory minimum dropped to 13 months on January 1, 2018, with the enactment of HB 3078 (2017), Vallin and prosecutors entered into plea negotiations.

The trial court agreed with prosecutors that HB 3078 (2017) violated Article IV, section 33, of the Oregon Constitution, and that Vallin must be sentenced pursuant to Measure 57, not HB 3078. Vallin then entered a conditional guilty plea. The court imposed a stipulated downward departure sentence of a 24-month term of probation and a suspended 22-month prison term. Vallin reserved the right to appeal the trial court’s HB 3078(2017) constitutionality ruling.

On February 20, 2018, the Clackamas County Circuit Court entered a general judgment in Foote, declaring “that the amendments to ORS 137.717 by sections 5 and 6 of House Bill 3078(2017) were enacted in violation of Article IV, section 33, of the Oregon Constitution, and therefore, those amendments are invalid and have no force or effect.”

The State appealed the Clackamas County decision, and Vallin appealed the Lincoln County decision. Both cases were certified directly to the Oregon Supreme Court and consolidated for oral argument.

After Vallin filed his brief, 12 Oregon lawmakers, including the Senate Republican leader and the House Democratic leader, filed an amicus curiae brief supporting Vallin’s position. Ten other organizations also did so.

On January 31, 2019, the Oregon Supreme Court reversed Vallin’s conviction, holding “that HB 3078(2017) did not ‘reduce a criminal sentence approved by the people’ within the meaning of Article IV, section 33, and that it could be, and was, validly enacted by a simple majority of the legislature.”

Once the 2009 Legislature enacted HB 3508 by a two-thirds majority, ORS 137.717 became a legislatively enacted law rather than a “voter-approved” measure. “It follows that Article IV, section 33, does not apply to the resulting sentences, and that the legislature could validly reduce them by a simple majority in both houses - and did so when it enacted HB 3078(2017),” the Court declared. See: State v. Vallin, 364 Or 295,434 P3d 413 (2019).

The Court decided Foote two months later. Noting that Vallin controlled the decision on the merits, the Court focused exclusively on whether Foote and the crime victims had standing to bring suit.

Beginning with the crime victims, the Court rejected the trial court’s conclusion that they had standing because they voted for Measure 57 (2008) and Measure 10 (1994). “What is relevant is whether the amendment of ORS 137.717(2017) in HB 3078 had an actual effect on a ‘legally recognized’ interest of plaintiffs as voters,” the Court found. “It did not.”

The Court also rejected Foote's claimed standing due to uncertainty of the law because Gortmaker v. Seaton, 252 Or 440,450 P2d 547 (1969) “remains good law” and “controls the resolution.” The Court concluded that “Foote’s asserted interest in certainty about his prosecutorial duties with respect to the effect of a criminal statute is not an interest that can confer standing under ORS 28.020.” See: Foote v. Oregon, 364 Or 558, _ P3d _ (2019).

Additional sources: Oregonian/OregonLive, Statesman Journal, 2008 Voters’ Pamphlet and HB 3078 (2017)

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