Argued and Submitted September 20, 2012
Resubmitted January 7, 2013.
On review from the Court of Appeals, CC C081586CR CA A141053. [*]
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.
This case requires us to examine Article I, section 20, of the Oregon Constitution -- the privileges or immunities provision -- in the context of prosecutorial discretion. Specifically, we must determine whether Article I, section 20, applies to prosecutors' charging decisions and, if so, whether a prosecutor must consistently adhere to a coherent, systematic policy in making charging decisions.
Defendant was accused of embezzling money from her employer in numerous transactions over a period of 16 months, and the prosecutor aggregated those transactions to indict defendant on 16 counts of theft -- one count for each month. Although the prosecutor's office did not have a "policy" for aggregating theft transactions, the prosecutor aggregated the transactions by month to create "a clear organizational outline for the jury." Defendant moved to dismiss the indictment, arguing that it violated Article I, section 20, because this court's decision in State v. Freeland, 295 Or 367, 375, 667 P.2d 509 (1983), required the prosecutor to apply a "coherent, systematic policy" when aggregating theft transactions. The trial court denied that motion, and defendant entered a conditional guilty plea. On appeal, the Court of Appeals reversed, holding that the state had violated Article I, section 20, because the prosecutor's office had no policy providing consistent guidance for prosecutors regarding whether and how to aggregate multiple theft transactions. State v. Savastano, 243 Or.App. 584, 589- 90, 260 P.3d 529 (2011). For the reasons set out below, we reverse the decision of the Court of Appeals and affirm defendant's conviction. In doing so, we overrule Freeland and reaffirm this court's decision in State v. Clark, 291 Or 231, 630 P.2d 810, cert den, 454 U.S. 1084 (1981).
I. FACTS AND PROCEEDINGS BELOW
Defendant was accused of embezzling more than $200, 000 from her employer over a period of 16 months in numerous theft transactions. The prosecutor relied on an aggregation statute to aggregate those theft transactions: "The value of single theft transactions may be added together if the thefts were committed * * * [a]gainst the same victim, or two or more persons who are joint owners, within a 180-day period." Former ORS 164.115(5) (2007), renumbered as ORS 164.115(6) (2011). The prosecutor aggregated the individual theft transactions by month and charged defendant with 16 counts of theft, including 10 counts of first-degree aggravated theft and six counts of first-degree theft.
Defendant filed a motion to dismiss the indictment, arguing that her rights under Article I, section 20, of the Oregon Constitution had been violated, because there was no "coherent, systematic policy" guiding the prosecutor's exercise of his discretion to aggregate multiple theft transactions. During the hearing on defendant's motion, the prosecutor explained how the aggregation decision had been made:
"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."
The trial court denied defendant's motion, stating that the prosecutor was "well within [his] discretionary authority in charging the case in the way that [he] did." Defendant entered a conditional guilty plea and appealed the trial court's denial of her motion.
The Court of Appeals reversed. The court began by reviewing this court's Article I, section 20, case law. The court noted that Article I, section 20, protects both individuals and classes of individuals. Savastano, 243 Or.App. at 588; see also Clark, 291 Or at 237 (noting that Article I, section 20, "forbids inequality of privileges or immunities not available 'upon the same terms, ' first, to any citizen, and second, to any class of citizens"). This court's cases have analyzed separately individual-based claims -- those focused on whether the government has granted or denied privileges or immunities "without legitimate reasons related to [a] person's individual situation" -- and class-based claims -- those focused on whether the government has granted or denied privileges or immunities to a class of citizens based on "unjustified differentiation." Clark, 291 Or at 239. Because defendant raised an individual-based claim, rather than a class-based claim, the Court of Appeals relied on the case law involving those claims and concluded that Article I, section 20, applies to prosecutorial discretion, including prosecutorial charging decisions. Savastano, 243 Or.App. at 588 (citing Oregon cases applying Article I, section 20, analysis to decisions of prosecutors). The court then set out a two-part test for analyzing individual-based claims under Article I, section 20, drawing, in part, from this court's decision in Freeland:
"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).
Applying that two-part test, the Court of Appeals first concluded that the way in which multiple theft transactions are aggregated into a smaller number of criminal charges is of constitutional magnitude because of a defendant's possible burden to defend against "a multitude of minor charges" and because of the range of possible penalties that could accompany different charging decisions. Id. at 589. Addressing the second inquiry, the court determined that, although defendant did not provide evidence showing that a coherent, systematic policy was lacking in this case, the prosecutor conceded that the charging decision was unsystematic. Id. ("Although the prosecutor cited a criterion --clarity for the jury -- he did not argue that the criterion was a department-wide or consistent policy[.]"). Moreover, although the prosecutor said that he considered a number of factors in making charging decisions, the court determined that that was not enough to satisfy the requirements in Freeland, because the "factors must remain constant from case to case." Id. Therefore, the court reversed and remanded the case to the trial court. Id. at 590.
II. ISSUES ON REVIEW
On review, the state makes two arguments. The state first argues that application of the methodology set forth in Priest v. Pearce, 314 Or 411, 415-16, 840 P.2d 65 (1992), demonstrates that Article I, section 20, does not apply to prosecutors' charging decisions. Instead, the state argues, the text, history, and at least some of the case law surrounding that provision demonstrate that Article I, section 20, was intended to be a "narrow limitation on the legislature's authority to enact laws granting special privileges -- largely economic privileges -- to individuals or classes of individuals." The state reasons that, in this case, neither former ORS 164.115(5) (2007) nor any other statute at issue grants privileges or immunities. In advancing its interpretation of Article I, section 20, the state invites this court to reconsider and significantly narrow its prior analysis of both individual-based and class-based claims under Article I, section 20. To narrow that analysis, the state advocates overturning some of this court's prior cases, including Clark and Freeland.
Alternatively, the state argues, even if Article I, section 20, does apply to individual-based claims arising from a prosecutor's charging decisions, a prosecutor is not required to make those decisions according to a coherent, systematic policy. Rather, the prosecutor merely has to show that the decision was rational and was not based on impermissible criteria. Moreover, the state asserts, the prosecutor has to make that showing only after the defendant has demonstrated that he or she in fact was treated differently from similarly situated defendants.
Defendant responds that examination of Article I, section 20, using the Priest methodology reveals that that provision was intended to prevent the government from granting privileges or immunities in an inequitable or arbitrary way, which would include a prosecutor arbitrarily aggregating theft transactions. In addition to relying on the text and history of Article I, section 20, defendant traces this court's cases -- including Clark, Freeland, and others -- to support her argument that the prosecutor violated Article I, section 20, because he exercised his discretion to aggregate the theft transactions in the absence of any policy to guide that discretion. Defendant argues that the state has not met its burden of showing why this court should overturn its prior cases, including Freeland. Moreover, defendant argues, even if this court, considering the facts in Freeland anew, would have reached a different result, the rationale behind that decision remains sound.
At the outset, we note that the Court of Appeals was correct to apply Freeland in this case, because Freeland also involved an individual-based Article I, section 20, challenge to prosecutorial discretion involving charging decisions. Specifically, Freeland involved the prosecutor's discretion in determining whether to charge a defendant by indictment or by preliminary hearing. 295 Or at 372-73. Moreover, as discussed more fully below, although this court's application of Freeland has not always been easy to square with the text of that opinion, the Court of Appeals relied on the standard articulated in Freeland. That is, after the court determined that a privilege or immunity was at issue, the court analyzed whether the prosecutor had applied "'sufficiently consistent standards to represent a coherent, systematic policy[.]'" Savastano, 243 Or.App. at 588 (quoting Freeland, 295 Or at 375). Although defendant here did not identify anyone who had received more favorable treatment than she did, the court read Freeland to dispense with that requirement: "[U]nlawful discrimination occurs when the state distributes a benefit or burden in a standardless, ad hoc fashion, without any 'coherent, systematic policy.'" Id. (quoting Freeland, 295 Or at 375). Rather than requiring a showing of a similarly situated defendant who had been treated more favorably, the court held that a defendant could prevail if he or she could "establish the lack of criteria or, if there are criteria, the lack of consistent enforcement." Id. That reading of Freeland seems correct, as the defendant there did not identify any particular, similarly situated individual who was charged by means of a preliminary hearing rather than by grand jury indictment -- although no one disputed that some defendants in Multnomah County were charged by the former procedure. It was sufficient in Freeland for the defendant to show that he might have received less favorable treatment than some other defendants, and that the prosecutor's choice to provide that less favorable treatment was not made pursuant to a coherent, systematic policy.
The Court of Appeals applied Article I, section 20, as interpreted in Freeland, and concluded that, because the prosecutor admitted that no policy for aggregating theft transactions existed, and because he did not indicate that the criteria that he used in this case were consistently applied, defendant's Article I, section 20, rights were violated. Id. at 589-90. We cannot say that the Court of Appeals' application of Freeland was incorrect.
III. RECONSIDERATION OF FREELAND
That does not end our inquiry, however. Because defendant would prevail under Freeland, as the Court of Appeals concluded, we must next address the state's argument that application of the Priest methodology to Article I, section 20, demonstrates that Freeland should be overruled because Article I, section 20, does not require a prosecutor to apply a "coherent, systematic policy" to a charging decision like the one at issue here. Thus, we turn to examining the meaning of Article I, section 20, and specifically to whether it requires government entities to apply such a "policy" in granting a privilege or immunity.
In undertaking the inquiry outlined in Priest, our goal is to identify the historical principles embodied in the text of Article I, section 20, and to apply those principles faithfully to modern circumstances as they arise. Coast Range Conifers v. Board of Forestry, 339 Or 136, 142, 117 P.3d 990 (2005). Put differently, the historical inquiry set out in Priest invites us to identify the principles that Article I, section 20, was intended to advance, while recognizing that the scope of that provision is not limited to the historical circumstances surrounding its adoption. See Hewitt v. SAIF, 294 Or 33, 46, 653 P.2d 970 ...