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Foote v. State

Supreme Court of Oregon

March 28, 2019

John S. FOOTE, Mary Elledge, and Deborah Mapes-Stice, Plaintiffs-Respondents,
v.
STATE OF OREGON, Defendant-Appellant.

          Argued and submitted September 13, 2018.

          On appeal from a judgment of the Clackamas County Circuit Court (CC 17CV49853). [*]

          Benjamin Gutman, Solicitor General, Salem, argued the cause and fled the briefs for appellant. Also on the briefs was Ellen F. Rosenblum, Attorney General.

          Thomas M. Christ, Sussman Shank LLP, Portland, argued the cause and fled the brief for respondents.

          Margaret S. Olney, Portland, fled the brief on behalf of amici curiae Partnership of Safety and Justice, Oregon Students Association, Latino Network, Ecumenical Ministries of Oregon, YWCA of Greater Portland, Urban League, Pathfnders of Oregon and Red Lodge Transition Services.

          Gregory A. Chaimov, Davis Wright Tremaine LLP, Portland, fled the brief on behalf of amici curiae American Civil Liberties Union of Oregon Foundation, Inc., and Oregon Justice Resource Center.

          Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, Nelson, and Garrett, Justices. [**]

         [364 Or. 559] Case Summary: The Clackamas County District Attorney and two individuals who identified themselves as voters and crime victims brought an action against the state in Clackamas County Circuit Court under ORS 28.030, seeking a judicial declaration that HB 3078 (2017), which amended ORS 137.717 (2015) to reduce the presumptive sentences provided therein for certain property crimes, was enacted in violation of Article I V, section 33, of the Oregon Constitution, and was invalid. The state moved to dismiss the complaint on the ground that plaintiffs lacked standing, but the Clackamas County Circuit Court denied the motion and proceeded to the merits. The circuit court ultimately granted the requested declaratory relief. The state appealed, arguing, among other things, that the circuit court had erred in denying its motion to dismiss for lack of standing. The appeal was transferred to the Oregon Supreme Court in accordance with a special jurisdictional statute enacted to expedite a final determination of the validity of HB 3078. Held: Plaintiffs failed to establish that they have standing to bring their declaratory judgment action, and the circuit court's conclusion that plaintiffs did have standing was in error.

         The judgment of the circuit court is vacated, and the case is remanded to the circuit court to dismiss the complain.

         [364 Or. 560] WALTERS, C. J.

         The State of Oregon appeals from a circuit court's declaratory judgment invalidating a 2017 sentencing statute on the ground that it was enacted in violation of Article IV, section 33, of the Oregon Constitution. Among other things, the state contends that plaintiffs lacked standing to bring the underlying declaratory judgment action. For the reasons that follow, we agree that plaintiffs lacked standing, and we therefore vacate the declaratory judgment and remand the case to the circuit court with instructions to dismiss the action.

         Plaintiffs in this case are Clackamas County District Attorney John Foote and two individuals, Mary Elledge and Deborah Mapes-Stice, who identify themselves as both crime victims and voters. Together, plaintiffs brought an action against the state in Clackamas County Circuit Court, seeking a declaration that HB 3078 (2017), which amended ORS 137.717 (2015) to reduce the presumptive sentences provided therein for certain property crimes, was enacted in violation of Article IV, section 33, of the Oregon Constitution, and therefore was invalid. Article IV, section 33, which was adopted by the voters in 1996 as Ballot Measure 10, provides that a two-thirds majority in both houses of the legislature is necessary "to pass a bill that reduces a criminal sentence approved by the people under [Article IV, section 1, of the Oregon Constitution]." In their action, plaintiffs took the position that the longer presumptive prison sentences set out in ORS 137.717 (2015) had been "approved by the people" in 2008, when Ballot Measure 57 was adopted, and could not lawfully be reduced by the simple majorities that HB 3078 had garnered to amend the statute.

         The state moved to dismiss the action, arguing that plaintiffs lacked standing and that the constitutional issue that they were attempting to raise would more appropriately be resolved in an ordinary criminal appeal. Plaintiffs responded to the motion to dismiss, arguing that (1) plaintiff Foote, at least, had standing as a district attorney who was adversely affected by HB 3078, insofar as it caused him to be uncertain about what sentences to recommend for persons convicted of the property crimes that it addressed; and [364 Or. 561] (2) given that the Attorney General had indicated that she would not contest the validity of HB 3078 under any circumstances, the issue of that statute's validity would never be properly litigated in an ordinary criminal appeal. Plaintiffs also moved for judgment in their favor on the pleadings, and the state responded with a cross-motion of its own for judgment on the pleadings.

         The circuit court ultimately rejected the state's motion to dismiss for lack of standing. It held that, although plaintiff Foote lacked standing in his capacity as a sitting district attorney, all three plaintiffs had standing to bring the action in their capacities as electors who had voted for Measure 57 and Measure 10. In regard to the latter point, the court opined that plaintiffs were "substantially affected" by HB 3078 because enactment of that bill by a simple majority had deprived them of the "safety that they were entitled to under [Measure 57]" and the "enhanced protection from governmental process that they were entitled to under Article IV, § 33, of Oregon's Constitution [(Measure 10)]." After also rejecting the state's alternative argument, the circuit court considered the merits of plaintiffs' complaint and ultimately concluded that HB 3078 had been enacted in violation of Article IV, section 33. The court therefore granted plaintiffs' motion for judgment on the pleadings, denied the state's cross-motion, and issued a judgment declaring HB 3078 to be invalid.

         The state filed a timely notice of appeal in the Court of Appeals, but, in accordance with a special jurisdictional statute enacted to expedite final resolution of the validity of ORS 137.717 (2015), the Court of Appeals transferred the appeal to this court.[1] The case was consolidated for purposes of oral argument with State v. Vallin,364 Or. 295, 434 P.3d 413 (2019), a criminal defendant's certified appeal from a trial court's sentencing decision that had relied on an assumption that HB 3078 was enacted in violation of Article ...


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