State v. Mercer

344 P.3d 109, 269 Or. App. 135, 2015 Ore. App. LEXIS 150
CourtCourt of Appeals of Oregon
DecidedFebruary 11, 2015
Docket120431519; A153015
StatusPublished
Cited by5 cases

This text of 344 P.3d 109 (State v. Mercer) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Mercer, 344 P.3d 109, 269 Or. App. 135, 2015 Ore. App. LEXIS 150 (Or. Ct. App. 2015).

Opinion

LAGESEN, P. J.

This appeal requires us to decide whether Ballot Measure 73 (2010),1 which created enhanced penalties for some repeat sex offenders and intoxicated drivers, was submitted to the voters for their approval in violation of the single-subject requirement of Article IV, section l(2)(d),2 of the Oregon Constitution. We conclude that it was not.

The issue comes to us by way of a criminal appeal. Defendant was charged with, and convicted of, driving under the influence of intoxicants (DUII).3 Because defendant [137]*137already had two DUII convictions, the offense was treated as a Class C felony under section 3 of Measure 73, codified at ORS 813.011. Before trial, defendant objected to the application of Measure 73 to his case, arguing that the measure was invalid on the ground that it “violate [d] the ‘single subject’ rule of the Oregon Constitution.” The trial court disagreed and, after defendant was convicted again of DUII, sentenced him in accordance with the requirements of section 3 of Measure 73, that is, ORS 813.Oil.4 On appeal, defendant renews his argument that Measure 73 was submitted to the voters in violation of the Article IV, section l(2)(d), single-subject requirement. He requests that we invalidate the measure on that ground, “reverse his conviction for felony DUII[,] and remand for entry of a judgment convicting him of misdemeanor DUII and for resentencing.”5

We review for legal error a trial court’s ruling regarding an initiative measure’s compliance with the single-subject requirement of Article IV, section l(2)(d). See State ex rel Caleb v. Beesley, 326 Or 83, 87-93, 949 P2d 724 (1997) {Caleb) (applying that standard). Here, the trial court did not err when it concluded that Measure 73 satisfies the Article IV, section l(2)(d), single-subject rule.

The Oregon Constitution contains two “single-subject rules”: one for legislative acts, codified at Article IV, section 20; and one for initiative measures, codified at Article IV, section l(2)(d).6 The text of those provisions [138]*138nearly mirror one another; the single-subject rule for legislative acts mandates that “[e]very Act shall embrace but one subject, and matters properly connected therewith” Or Const, Art IV, § 20 (emphasis added), while the rule for initiative measures requires that “[a] proposed law or amendment to the Constitution shall embrace one subject only and matters properly connected therewith” Or Const, Art IV, § l(2)(d) (emphasis added). Both provisions are aimed at the prevention of “logrolling,” or

“‘the practice of inserting in one bill two or more unrelated provisions so that those favoring one provision could be compelled, in order to secure its adoption, to combine with those favoring another provision, and by this process of log-rolling the adoption of both provisions could be accomplished, when neither, if standing alone, could succeed on its own merits.’”

Lowe v. Keisling, 130 Or App 1,8-9, 882 P2d 91 (1994), rev dismissed, 320 Or 570 (1995) (quoting Lovejoy v. Portland, 95 Or 459, 465, 188 P 207 (1920)).

Although the two provisions are worded differently, the Supreme Court has held that they “should be given the same meaning,” OEA v. Phillips, 302 Or 87, 93, 727 P2d 602 (1986), and has adopted a two-part framework for evaluating whether a proposed law or constitutional amendment embraces only a single “subject” for purposes of Article IV, section l(2)(d). See Caleb, 326 Or at 93 (case law interpreting both Article IV, section 20, and Article IV, section l(2)(d) is relevant to the analysis). Under that framework, a reviewing court asks whether it can discern a “unifying principle logically connecting all provisions” in the measure, such that it can be said that the measure embraces a single subject. See Mclntire v. Forbes, 322 Or 426, 443-44, 909 P2d 846 (1996); see also Caleb, 326 Or at 91. If the court cannot identify a logical unifying principle, the measure embraces more than one subject in violation of the single-subject rule, and the court’s inquiry ends. See OEA, 302 Or at 100. If it can, then the court examines whether any “other matters” contained in the measure are “properly connected” to the unifying principle identified by the court. See id.; see also Caleb, 326 Or at 93.

[139]*139That standard typically is satisfied so long as a proposed law or amendment addresses a single substantive area of law, even if it “includ[es] a wide range of connected matters intended to accomplish the goal of that single subject.” Caleb, 326 Or at 91. Two Supreme Court decisions involving laws in the substantive area of criminal law illustrate that point. In State v. Fugate, 332 Or 195, 204, 26 P3d 802 (2001), the law at issue, Senate Bill (SB) 936 (1997), effected substantive legislative change in five distinct ways: (1) “directly provid [ing] various specific rights to crime victims” (in sections 2, 3, 4, 5, 6, 7, 11, 12, 13, and part of section 20); (2) “dealing] at various levels with the admissibility of evidence in criminal trials” (in sections 1, 22, 29, and 37); (3) “deal[ing] with release criteria respecting those accused of crimes” (sections 18 and 19, and the remainder of section 20); (4) “addressing] criminal sentencing and orders for restitution” (in sections 14, 15, 16, 17, 23, 24, 26, 27, and 32); and (5) “making] various changes to the law respecting juries in criminal cases” (in sections 8, 9b, 21, and 25).

Notwithstanding the wide range of criminal justice matters addressed by the law, the court upheld it against a single-subject challenge. The court characterized the subject matter of the law as “the prosecution and conviction of persons accused of crime,” concluding that “[t]hat subject logically connects and unifies all the provisions of SB 936, including those that create, within the process of criminal law enforcement, certain legal rights for the victims of crime, and those that deal with sentencing and restitution.” Fugate, 332 Or at 204. In concluding that such disparate provisions were united by the single principle of “the prosecution and conviction of persons accused of crime,” the court, in effect, recognized that a law that addresses exclusively matters of criminal law has but one subject for purposes of Article IV. The court reached a similar result in Caleb. There, the court held that Ballot Measure 11 (1994), which created mandatory sentences for a range of offenses listed in the measure, comported with the single-subject requirement of Article IV, section l(2)(d), because it embraced the single subject of “mandatory imprisonment of any person, 15 years of age or older, who is convicted of a listed felony on or after April 1, 1995.” Caleb, 326 Or at 92.

[140]*140By contrast, a law that includes provisions addressing distinct and unrelated substantive areas of law risks violating the single-subject limitation. In Mclntire,

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Cite This Page — Counsel Stack

Bluebook (online)
344 P.3d 109, 269 Or. App. 135, 2015 Ore. App. LEXIS 150, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mercer-orctapp-2015.