State v. Savastano, CC C081586CR

• Court: Supreme Court of Oregon
• Writing for the Court: BALMER, C.J.
• Citation: 354 Or. 64,309 P.3d 1083
• Docket Number: CA A141053,SC S059973.,CC C081586CR
• Decision Date: 12 September 2013
• Parties: STATE of Oregon, Petitioner on Review, v. Tiffany Lee SAVASTANO, Respondent on Review.

354 Or. 64
309 P.3d 1083

STATE of Oregon, Petitioner on Review,
v.
Tiffany Lee SAVASTANO, Respondent on Review.

CC C081586CR
CA A141053
SC S059973.

Supreme Court of Oregon, En Banc.

Argued and Submitted Sept. 20, 2012.
Resubmitted Jan. 7, 2013.
Decided Sept. 12, 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.

354 Or. 66

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).¹ 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, 102 S.Ct. 640, 70 L.Ed.2d 619 (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

354 Or. 67

aggregation statute to aggregate those theft transactions: "The value of single theft

309 P.3d 1086

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.²

Defendant filed a motion to dismiss the indictment, arguing that her rights under Article I, section 20, of the Oregon Constitution³ 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

354 Or. 68

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, 260 P.3d 529; see also Clark, 291 Or. at 237, 630 P.2d 810 (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, 630 P.2d 810. 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, 260 P.3d 529 (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

309 P.3d 1087

consistent standards to represent a coherent, systematic policy[’]?"

Id. (quoting Freeland, 295 Or. at 375, 667 P.2d 509).⁴

354 Or. 69

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, 260 P.3d 529. 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, 260 P.3d 529.

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

354 Or. 70

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...