Argued and Submitted September 15, 2014
CC 100545212, CA A146601. On review from the Court of Appeals. [*]
State v. Sagdal, 258 Or.App. 890, 311 P.3d 941, (2013)
Jed Peterson, O'Conner Weber, LLP, Portland, argued the cause and filed the briefs for petitioner on review.
Paul Smith, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With him on the briefs was Ellen F. Rosenblum, Attorney General, Anna Joyce, Solicitor General, and Jeremy Rice, Assistant Attorney General.
BALMER, C. J.
[356 Or. 640] In this criminal case, we consider whether empanelling a jury of fewer than 10 persons in a misdemeanor prosecution violates Article I, section 11, of the Oregon Constitution. That provision states that, in the circuit court, 10 members of a jury may render a verdict of guilty or not guilty, while a later-enacted constitutional provision, Article VII (Amended), section 9, states that " [p]rovision may be made by law for juries consisting of less than 12 but not less than six jurors." Defendant was charged with reckless driving, a misdemeanor. The trial court refused defendant's request for " a minimum of a ten-person jury" and instead empanelled a six-person jury. Defendant was convicted based on a unanimous guilty verdict. Defendant appealed, and the Court of Appeals affirmed. State v. Sagdal, 258 Or.App. 890, 311 P.3d 941 (2013). We allowed defendant's petition for review and now affirm the decision of the Court of Appeals, although our analysis differs in some respects.
Defendant was found in what appeared to be an unconscious state, sitting in his stopped car with the engine running in the left turn lane of a public road. When police arrived, they conducted field sobriety tests, which defendant failed. The police then arrested defendant. At the police station, defendant agreed to take an Intoxylizer alcohol breath test and was found to have a blood alcohol level of 0.30. At his trial in circuit court for reckless driving under ORS 811.140, defendant requested " a minimum of a ten-person jury, under Article 1, section 11 of the Oregon Constitution[.]" The trial court refused, instead empanelling a six-person jury that unanimously found defendant guilty. Defendant renewed his objection to the jury size before and after the verdict, as well as at sentencing.
Defendant appealed his conviction, arguing that the trial court had violated Article I, section 11, by empanelling and accepting a verdict from a jury consisting of fewer than 10 members in a criminal case in circuit court. The [356 Or. 641] Court of Appeals posed the question presented as whether " the rights established in Article I, section 11, limit the
authority granted under Article VII (Amended), section 9, [to empanel a jury consisting of less than 12 but not less than six] to cases other than criminal cases in circuit court." Sagdal, 258 Or.App. at 893. That court reasoned that the intended effect of Article I, section 11, was to permit nonunanimous jury verdicts in felony cases in circuit court, but not to create a right to a jury of a particular size. Id. at 898, 901. Article VII (Amended), section 9, on the other hand, was pertinent to jury size and was intended to apply to jury trials in all courts. Id. at 901. The Court of Appeals " harmonize[d]" the two provisions by concluding that Article I, section 11, applied to only felony cases in circuit court and that Article VII (Amended), section 9, granted the legislature authority to provide for juries of fewer of 12 persons in misdemeanor cases in circuit court. Id. Thus, the Court of Appeals concluded, the trial court had properly empanelled a six-member jury for defendant's misdemeanor case. Id. On review, defendant argues that Article I, section 11, sets a constitutional minimum number of jurors in criminal jury trials in circuit court by using the word " ten" and that the later enactment of Article VII (Amended), section 9, had no effect on that minimum size requirement. Rather, in defendant's view, Article VII (Amended), section 9, is a grant of power to the legislature to provide for smaller juries in some cases, but Article I, section 11, is a restriction on that power: the latter provision prohibits the legislature from permitting juries of fewer than 10 members in criminal cases in circuit court. The state responds that Article VII (Amended), section 9, specifically authorizes the legislature to enact laws providing for juries of fewer than 10 members. In this case, the legislature enacted ORS 136.210(2) to provide for six-person juries in circuit court when the only charges are misdemeanors. In the state's view, Article I, section 11, merely permits nonunanimous jury verdicts in most criminal cases in circuit court, but does not vest a criminal [356 Or. 642] defendant with a right to a jury of any specific size. Even if it did, the state argues, the conflict between the two provisions would be resolved in favor of Article VII (Amended), section 9, because it was enacted later and is more specific than the relevant part of Article I, section 11.
This case requires us to interpret two constitutional amendments, both adopted by the voters following legislative referral. We interpret referred constitutional amendments within the same basic framework as we interpret statutes: by looking to the text, context, and legislative history of the amendment to determine the intent of the voters. State v. Reinke, 354 Or. 98, 106, 309 P.3d 1059 (2013), adh'd to as modified on recons, 354 Or. 570, 316 P.3d 286 (2013) (referred constitutional amendments are interpreted similarly to interpretation of a statute). Moreover, " [t]he purpose of that analysis is not to freeze the meaning of the state constitution" on the date when the relevant provision was adopted but, rather, to identify " relevant underlying principles that may inform our application of the constitutional text to modern circumstances." State v. Davis, 350 Or. 440, 446, 256 P.3d 1075 (2011).
We focus first on the text and context of a constitutional amendment for an obvious reason: " The best evidence of the voters' intent is the text and context of the provision itself[.]" State v. Harrell/Wilson, 353 Or. 247, 255, 297 P.3d 461 (2013). Context for a referred constitutional amendment includes the historical context against which the text was enacted--including preexisting constitutional provisions, case law, and statutory framework. State v. Pipkin, 354 Or. 513, 526, 316 P.3d 255 (2013); George v. Courtney, 344 Or. 76, 84, 176 P.3d 1265 (2008). However, " caution must be used before ending the analysis at the first level, viz., without considering the history of the constitutional provision at issue." Stranahan v. Fred Meyer, Inc., 331 Or. 38, 57, 11 P.3d 228 (2000); see State v. Algeo, 354 Or. 236, 246, 311 P.3d 865 (2013) (" We focus first on the text and context * * * but also may consider the measure's history, should it appear useful to our analysis." ). The history of a referred constitutional provision includes
" sources of information that were available to the voters at the time the measure was adopted and that disclose the public's understanding of the [356 Or. 643] measure," such as the ballot title, arguments included in the voters' pamphlet, and contemporaneous news reports and editorials. Ecumenical Ministries v. Oregon State Lottery Comm., 318 Or. 551, 559 n 8, 871 P.2d 106 (1994); see generally Pipkin, 354 Or. at 526 (legislative history is examined where it appears useful to the court's analysis). Although legislative history can be helpful, we are cautious in relying on statements of advocates, such as those found in ...