State v. Sagdal , 356 Or. 639 ( 2015 )

No. 1 January 15, 2015 639
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Respondent on Review,
v.
MATTHEW SCOFIELD SAGDAL,
Petitioner on Review.
(CC 100545212; CA A146601; SC S061846)
En Banc
On review from the Court of Appeals.*
Argued and submitted September 15, 2014.
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.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
Defendant was charged with reckless driving, a misdemeanor. The trial
court refused defendant’s request for a minimum of a 10-person jury and instead
empanelled a six-person jury. Defendant was convicted based on a unanimous
guilty verdict, and the Court of Appeals affirmed. Held: (1) The provision of
Article I, section 11, that “in the circuit court ten members of the jury may render
a verdict of guilty or not guilty” does not impose a constitutional requirement of
a jury size of 10 or more in criminal cases, but rather provides for nonunanimous
verdicts when a court uses a jury of 12; (2) defendant was charged with a misde-
meanor, and so it was appropriate for the court to empanel a jury of six persons,
as directed by the legislature in ORS 136.210(2) and permitted by Article VII
(Amended), section 9.
The decision of the Court of Appeals and the judgment of the circuit court
are affirmed.
______________
*  Appeal from Multnomah County Circuit Court, Karin J. Immergut, Judge.
258 Or App 890, 311 P3d 941 (2013).
640 State v. Sagdal
BALMER, C. J.
In this criminal case, we consider whether empan-
elling 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 P3d 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 sta-
tion, 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 811.140,1
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 consist-
ing of fewer than 10 members in a criminal case in circuit
1
Defendant was also charged with driving under the influence of intoxi-
cants, ORS 813.010, but pleaded no contest and entered a diversion program on
that charge. Thus, trial was on only the reckless driving charge.
Cite as 356 Or 639 (2015) 641
court. The 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 cir-
cuit court.” Sagdal, 258 Or App at 893. That court reasoned
that the intended effect of Article I, section 11, was to per-
mit 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 conclud-
ing 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 crim-
inal 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 crim-
inal cases in circuit court. The state responds that Article
VII (Amended), section 9, specifically authorizes the legisla-
ture to enact laws providing for juries of fewer than 10 mem-
bers. In this case, the legislature enacted ORS 136.210(2) 2
to provide for six-person juries in circuit court when the only
charges are misdemeanors. In the state’s view, Article I, sec-
tion 11, merely permits nonunanimous jury verdicts in most
criminal cases in circuit court, but does not vest a criminal
2
ORS 136.210(2) provides that, “[i]n criminal cases in the circuit courts in
which the only charges to be tried are misdemeanors, the trial jury shall consist
of six persons.”
642 State v. Sagdal
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 legisla-
tive referral. We interpret referred constitutional amend-
ments within the same basic framework as we interpret
statutes: by looking to the text, context, and legislative his-
tory of the amendment to determine the intent of the voters.
State v. Reinke, 354 Or 98, 106, 309 P3d 1059 (2013), adh’d
to as modified on recons, 354 Or 570, 316 P3d 286 (2013)
(referred constitutional amendments are interpreted simi-
larly 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 prin-
ciples that may inform our application of the constitutional
text to modern circumstances.” State v. Davis, 350 Or 440,
446, 256 P3d 1075 (2011).
We focus first on the text and context of a constitu-
tional 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 P3d
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 P3d 255 (2013); George v. Courtney, 344 Or
76, 84, 176 P3d 1265 (2008). However, “caution must be
used before ending the analysis at the first level, viz., with-
out considering the history of the constitutional provision
at issue.” Stranahan v. Fred Meyer, Inc., 331 Or 38, 57, 11
P3d 228 (2000); see State v. Algeo, 354 Or 236, 246, 311 P3d
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 consti-
tutional 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
Cite as 356 Or 639 (2015) 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 P2d 106 (1994); see gener-
ally 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 rely-
ing on statements of advocates, such as those found in the
voters’ pamphlet, because of the partisan character of such
material. Northwest Natural Gas Co. v. Frank, 293 Or 374,
383, 648 P2d 1284 (1982).
We begin with the text of Article I, section 11. The
portion of the provision at issue in this case, added to the
Oregon Constitution by legislative referral in 1934, adopted
a proviso to the right to public jury trial in criminal prosecu-
tions: “provided, however, that in the circuit court ten mem-
bers of the jury may render a verdict of guilty or not guilty,
save and except a verdict of guilty of first-degree murder,
which shall be found only by a unanimous verdict, and
not otherwise[.]”3 See Or Laws 1933, SJR 4 (2d Spec Sess)
(referring amendment to voters); State v. Osbourne, 153 Or
484, 485, 57 P2d 1083 (1936) (noting that amendment was
adopted in 1934).
The relevant text of Article I, section 11, suggests
that the amendment was intended to define the circum-
stances in a criminal case in which a jury verdict is or is not
required to be unanimous, rather than to create a minimum
3
In full, Article I, section 11, provides:
“In all criminal prosecutions, the accused shall have the right to pub-
lic trial by an impartial jury in the county in which the offense shall have
been committed; to be heard by himself and counsel; to demand the nature
and cause of the accusation against him, and to have a copy thereof; to meet
the witnesses face to face, and to have compulsory process for obtaining wit-
nesses in his favor; provided, however, that any accused person, in other than
capital cases, and with the consent of the trial judge, may elect to waive trial
by jury and consent to be tried by the judge of the court alone, such election to
be in writing; provided, however, that in the circuit court ten members of the
jury may render a verdict of guilty or not guilty, save and except a verdict of
guilty of first-degree murder, which shall be found only by a unanimous ver-
dict, and not otherwise; provided further, that the existing laws and consti-
tutional provisions relative to criminal prosecutions shall be continued and
remain in effect as to all prosecutions for crimes committed before the taking
effect of this amendment.”
644 State v. Sagdal
jury size. First, the text refers to “render[ing] a verdict”
rather than empanelling a jury, indicating that the provi-
sion relates to the decision that the jury makes rather than
the judge’s act of empanelling (and thus setting the size
of) the jury. “Render” at the time meant “[t]o give up; to
yield; to return; to surrender[,]” and a “verdict” was “[t]he
formal and unanimous decision or finding made by a jury,
impaneled and sworn for the trial of a cause and reported
to the court (and accepted by it), upon the matters or ques-
tions duly submitted to them upon the trial.” Black’s Law
Dictionary 1528, 1807 (3d ed 1933). The phrase “render ver-
dict” meant “[t]o agree on and to report the verdict in due
form[, t]o return the written verdict into court and hand it
to the trial judge.” Id. at 1529. Black’s Law Dictionary also
cites a contemporaneous court decision for the proposition
that, “[u]ntil accepted by the court, a finding of the jury is
not a ‘verdict.’ ” Id. at 1807 (citing Schulman v. Stock, 89
Conn 237, 532, 93 A 531 (1915)). Thus, the voters would have
understood from the text that the 1934 amendment affected
the criminal jury’s action of agreeing on and then report-
ing or returning its decision or finding to the court, rather
than affecting jury size. Moreover, as the Court of Appeals
noted, the text of the 1934 amendment uses the permissive
“may”—“ten members of the jury may render a verdict”—
rather than the directive “must,” which is consistent with
removing a previously existing restriction. Instead of the
previously required unanimous verdict, under the amend-
ment, a valid verdict may be returned by 10 jurors out of
12. Sagdal, 258 Or App at 895. The words and sentence
structure of the amendment strongly suggest that the ref-
erence to “ten members of the jury” is to the number out
of a 12-member circuit court jury—then set by statute, as
discussed below—required to render a valid verdict, rather
than to a minimum jury size requirement.
Second, the “save and except” clause requires a
“unanimous verdict” for first-degree murder cases.4 The
“save and except” clause is an exclusion from the general
rule found in the prior clause, and its terms illuminate the
4
First-degree murder is the historical analog to aggravated murder. State v.
Rogers, 352 Or 510, 521, 288 P3d 544 (2012).
Cite as 356 Or 639 (2015) 645
meaning of the general rule. See Black’s at 1583 (“save”
meant “[t]o except, reserve, or exempt; as where a statute
‘saves’ vested rights”). A “saving clause in a statute [was
defined at the time as] an exception of a special thing out of
the general things mentioned in the statute; it [was] ordi-
narily a restriction in a repealing act, which [was] intended
to save rights, pending proceedings, penalties, etc., from
the annihilation which would result from an unrestricted
repeal.” Id. Because the “save and except” clause requires
a “unanimous verdict” in a described subset of all crim-
inal prosecutions, the obvious inference is that the voters
intended to authorize nonunanimous verdicts in the cases
covered by the general rule. Moreover, the “save and except”
clause does not mention jury size.
The context of Article I, section 11, confirms that
voters intended it to provide for nonunanimous verdicts.
In 1934, all criminal trials in circuit court had 12-member
juries. Oregon Code, title XXX, ch 1, § 30-104 (1930) (“A trial
jury is a body of persons, twelve in number in the circuit
court, and six in number in the county court and courts
of justice of the peace[.]”); Oregon Code, title XIII, ch 9,
§ 13-912 (1930) (“In criminal cases the trial jury shall con-
sist of twelve (12) persons, unless the parties consent to
a less number[.]”). Other courts at the time, such as the
county courts and justice courts, used smaller juries of six,
and “the circuit court [was] the only court employing a jury
of twelve[.]” Osbourne, 153 Or at 489.
Thus, it appears that the assumption underlying
the Article I, section 11, “ten member” requirement to ren-
der a verdict is that the requirement applies when the jury
has 12 total members; however, because of the practice of
having smaller juries in county courts, voters would have
understood that juries of fewer than 12 were still constitu-
tionally permissible. See State ex rel Smith v. Sawyer, 263
Or 136, 138, 138 n 1, 501 P2d 792 (1972) (noting that the
“provision obviously contemplates a jury of twelve persons,”
but explicitly declining to decide whether Article I, section
11, permits juries of fewer than 12). The voters’ intention in
adopting the 1934 amendment to Article I, section 11, was
not to mandate a jury of 10 or 12 persons, but rather was to
646 State v. Sagdal
provide for nonunanimity when a jury of 12 was used—as
was the practice in circuit court at the time.5
In fact, this court explicitly so held shortly after the
voters adopted the amendment to Article I, section 11. In
1936, in Osbourne, this court considered two challenges to
the validity of the then-newly adopted amendment. In one of
the assignments of error, a party
“suggested that, in the event the Legislature should give
the district courts[6] general jurisdiction and provide for a
jury of twelve therein or should create a court of criminal
administration, with jurisdiction over cases generally, as
distinct from circuit courts, neither the district court nor
the newly created court would be affected by the amend-
ment under discussion, because reference in the amend-
ment is made only to circuit courts. When we remember
that the circuit court is the only court employing a jury of
twelve, it is very apparent that this reference to circuit courts
is only definitive of the court or courts employing a jury of
twelve as distinguished from a jury of six or any number
less than twelve. So understood, it constitutes a constitu-
tional restriction depriving the legislature of the power or
authority to give to any court now existing or hereafter to
be created, wherein a jury of twelve is required, the right
to demand unanimous verdicts in any criminal case except
those involving a conviction of murder in the first degree.”
Osbourne, 153 Or at 489-90 (emphasis added). Thus, this
court has already held that the reference to “circuit courts”
in the amendment to Article I, section 11, was intended to
be a reference to any “court or courts employing a jury of
twelve as distinguished from a jury of six or any number less
than twelve.” Id. Osbourne confirms our understanding of the
5
This case does not present the question whether Article I, section 11,
requires a jury of 12 persons in a felony case. The district, county, and justice
courts—which used six-person juries in 1934—had jurisdiction over certain
misdemeanors, but did not have jurisdiction over felony cases. As discussed, the
1934 amendment to Article I, section 11, was intended to permit nonunanimous
juries in circuit courts, which used 12-person juries, but was not intended to
change other aspects of the jury trial right. Defendant here was tried for a misde-
meanor by a six-person jury; the parties did not brief, and we do not decide, legal
issues related to the requirements, including jury size requirements, imposed by
Article I, section 11, on felony cases.
6
District courts were eliminated in 1995, and all district court functions and
judges were transferred to the circuit courts. Or Laws 1995, ch 658, § 1.
Cite as 356 Or 639 (2015) 647
voters’ intent in adopting Article I, section 11: to establish
rules for nonunanimous verdicts when a court employs a jury
of 12.
Our understanding is also aided by the history of
Article I, section 11. The ballot title before the voters referred
to a “NON-UNANIMOUS VERDICT CONSTITUTIONAL
AMENDMENT” and not to jury size.7 Official Republican
Voters’ Pamphlet, Special Election, May 18, 1934, 6. Also in
the voters’ pamphlet, the argument in favor noted that the
purpose of the amendment was “to prevent one or two jurors
from controlling the verdict or causing a disagreement[,]”
which “not only place[s] the taxpayers to the expense of a
retrial which may again result in another disagreement,
but congest[s] the trial docket of the courts.” Id. at 7. Thus,
voters would have understood that this constitutional amend-
ment was intended to increase the efficiency of the courts by
providing for nonunanimous verdicts.
Furthermore, both the arguments in favor and
against were written in a manner that clearly contemplated
a jury consisting of 12 members. For example, the argument
in favor indicated that “[d]isagreements occasioned by one
or two jurors refusing to agree with 10 or 11 other jurors is
a frequent occurrence. One unreasonable juror of the 12 * * *
can prevent a verdict either of guilt or innocence.” Id. at 7.
The argument opposed advocated that the amendment was
“objectionable” because defendants charged with first-degree
murder were “allowed the special privilege of no conviction
unless 12 jurors unanimously agree; whereas the small fry
* * * and all lesser crimes must take his chance on a 10/12
jury.” Id. at 8. The many references in the voters’ pamphlet
to a jury size of 12 do not indicate, as defendant asserts, that
the proposed amendment would enshrine a minimum jury
size of 12 in the constitution, but rather were used solely
to illustrate how the new nonunanimous verdict rule would
apply and the circumstances in which it would not. Notably,
7
The full ballot title also referred to a “CRIMINAL TRIAL WITHOUT
JURY.” Official Republican Voters’ Pamphlet, Special Election, May 18, 1934,
6. However, that part of the title was in error. Osbourne, 153 Or at 486-87. The
reference was to an amendment that had previously passed in 1932 allowing for
bench trials in certain circumstances and “had no proper place in the title of the
amendment under consideration.” Id. at 486.
648 State v. Sagdal
neither the argument in favor nor the argument opposed
refers to the circuit courts, but simply to the “the court”
with a “trial docket” using a jury “in criminal cases.” Id. at
7-8. Although we use the arguments in the voters’ pamphlet
with caution due to their political nature, in this case, the
same assumption that the 1934 amendment was to apply to
only juries of 12 members underlies both sides’ arguments.
Defendant argues that the text of the amendment
to Article I, section 11, simply provides that “ten” jurors are
required to render a verdict of guilty or not guilty in circuit
court, and that it nowhere refers to a minimum ratio or per-
centage of votes required to render a valid nonunanimous
verdict. Certainly, voters at the time could have expressed
their desire for nonunanimous voting in a different way,
perhaps as a ratio, as they previously had elsewhere in the
Oregon Constitution. See Article VII (Amended), section 5
(“In civil cases three-fourths of the jury may render a ver-
dict.” (Adopted in 1910)). Noting the use of a ratio in a dif-
ferent constitutional amendment, defendant asserts that, by
specifying “ten” jurors for a verdict of guilty or not guilty,
voters intended that minimum jury size to be enshrined in
the constitution. We disagree.
Defendant’s proposed reading of the 1934 amend-
ment to Article I, section 11, would be an exceedingly subtle
and indirect—not to mention confusing—way to introduce a
constitutional jury size requirement. Moreover, voters would
have been aware that some courts at the time, although not
the circuit court, employed juries of six. Thus, if the voters
had intended to adopt a jury size requirement, they presum-
ably would have used wording—such as defining a jury as
“a body of persons, twelve in number” or “the trial jury shall
consist of”—similar to that used in the contemporaneous
statutes providing for the jury size in different courts. See
Oregon Code, title XXX, ch 1, § 30-104 (1930) (“A trial jury is
a body of persons, twelve in number in the circuit court, and
six in number in the county court and courts of justice of
the peace[.]”); Oregon Code, title XIII, ch 9, § 13-912 (1930)
(“In criminal cases the trial jury shall consist of twelve (12)
persons, unless the parties consent to a less number[.]”).
Furthermore, the fact that the provision uses the word
“ten” rather than some ratio or percentage strengthens this
Cite as 356 Or 639 (2015) 649
court’s conclusion from almost 80 years ago that the provi-
sion was intended to apply to only “courts employing a jury
of twelve.” Osbourne, 153 Or at 489.8
We now turn to Article VII (Amended), section 9.
That amendment, referred to the voters by the legislature
and adopted by them in 1972, provides, in its entirety, that
“[p]rovision may be made by law for juries consisting of less
than 12 but not less than six jurors.” See Or Laws, 1971 SJR
17 (referring amendment to voters); Or Laws 1973, pp 6-7
(noting that amendment was adopted in 1972). As noted,
defendant argues that, although the 1972 amendment per-
mits six-person juries in some kinds of cases, it did not
change the requirement of Article I, section 11, that “ten”
jurors are required to render a valid verdict in a criminal
case in circuit court. For the reasons discussed above, defen-
dant’s premise is incorrect. The “ten member” reference in
Article I, section 11, does not establish a minimum jury size
but, rather, permits 10 members of a 12-member jury to
render a valid verdict. Even assuming, however, that defen-
dant’s interpretation of Article I, section 11, were correct,
that jury size requirement would have been changed when
Article VII (Amended), section 9, was adopted in 1972.
The text of Article VII (Amended), section 9, indi-
cates that the voters intended to grant the legislature the
authority to determine the size of juries (but not below a
minimum of six jurors) in all courts and types of cases, but
not other authority.9 The 1972 amendment was phrased
in terms of authority being granted to the legislature—
8
The Court of Appeals interpreted the nonunanimity provision of Article I,
section 11, to be limited to cases in the circuit courts. Sagdal, 258 Or App at 901
(“[W]e conclude that the intent of the amendment was to provide for nonunani-
mous jury verdicts in felony cases in circuit court[.]”). However, this court clearly
stated in Osbourne that the constitutional requirement of Article I, section 11,
applies to any “court or courts employing a jury of twelve,” not simply to courts
that happen to be named “circuit court.” Osbourne, 153 Or at 489. Neither party
has asked us to revisit that statement in this case, and we decline to do so.
9
As noted, defendant was charged only with a misdemeanor; ORS 136.210(2)
provides that, in those circumstances, the trial jury shall consist of six persons.
In other cases, including felony trials, “the trial jury shall consist of 12 persons
unless the parties consent to a less number.” ORS 136.210(1). Our holding here
is limited to misdemeanor cases, and we express no opinion as to whether and
under what circumstances provisions of the Oregon or federal constitutions
would impose jury size limitations on trials for nonmisdemeanor charges.
650 State v. Sagdal
“[p]rovision may be made by law”—to set the size of “juries”
between six and 12 “jurors.” See Jory v. Martin, 153 Or
278, 314, 56 P2d 1093 (1936) (“From the oft-repeated use
in the Constitution of the term, ‘provided by law’, no pos-
sible doubt can arise that it means, provided by enactment
of the legislative branch of the state, as distinguished from
constitutional mandate and from the action of the judicial
and administrative or executive branches.”). That power is
discretionary—the legislature “may” so provide—and the
constitutional text is without restriction to particular courts
or types of cases. See Webster’s Third New Int’l Dictionary
1396 (unabridged ed 1971) (“may” means “to have power :
be able” and to “have permission to * * * have liberty to”);
McIntire v. Forbes, 322 Or 426, 429-30, 909 P2d 846 (con-
stitutional text which is “inclusive, not exclusive, with
no limits stated” implies that there are no limits). More
importantly, the legislative power conferred by Article VII
(Amended), section 9, is to provide for juries “consisting of”
six to 12 members. To “consist” means to be “composed or
made up * * * of [.]” Webster’s at
484 (emphasis omitted). Thus, Article VII (Amended), sec-
tion 9, grants the legislature the authority to determine the
size of the jury within the stated limits, but does not grant it
authority over any other aspect of juries, such as the number
of votes required for a valid verdict.
The history of Article VII (Amended), section 9,
confirms that interpretation. First, it would have been clear
to voters that this amendment was limited to addressing
jury size. The ballot title read “MINIMUM JURY SIZE OF
SIX MEMBERS,” and the argument in favor in the voters’
pamphlet referred to the “historical accident” of juries
being “composed of precisely 12.” Official Voters’ Pamphlet,
General Election, Nov 7, 1972, 22-23. The voters’ pamphlet
also indicated that the amendment would not modify the
jury trial rights in Article I. The argument in favor explic-
itly stated that “[t]he measure does not change the jury
trial guarantees in Article I of the Oregon Constitution”—
which, of course, would include the nonunanimity provi-
sions of Article I, section 11, discussed above—and the citi-
zen committee explanation stated that the measure “would
not change the fundamental right to a jury[.]” Id. at 21-22.
Cite as 356 Or 639 (2015) 651
Thus, the amendment was limited in scope to jury size and
was not intended to reach jury unanimity or other aspects of
jury trial rights found in Article I.
Second, there was some confusion in the voters’
pamphlet as to the types of cases to which the measure
applied. Defendant urges that that confusion should lead us
to conclude that Article VII (Amended), section 9, applies to
only civil cases. The citizen committee explanation stated
the amended provision would apply in “civil and criminal
cases,” while the argument in favor stated that it would
apply only “in civil cases” and “in civil jury trials.” Id. at
21-22. The argument in favor then somewhat contradicted
itself by citing two then-current criminal cases decided by
the United States Supreme Court:
“The United States Supreme Court has recently said, ‘The
fact that the jury at common law was composed of pre-
cisely 12 jurors is a historical accident, unnecessary to
effect the purposes of the jury system.’ Oregonians should
not forego badly needed court reform in deference to this
‘historical accident’. The Supreme Court ruled in another
case, JOHNSON V. LOUISIANA, that juries of less than
12 are completely permissible under the United States
Constitution.”
Id. at 22. That argument quoted from Williams v. Florida,
399 U.S. 78, 102, 90 S. Ct. 1893, 26 L. Ed. 446 (1970), and cited
Johnson v. Louisiana, 406 U.S. 356, 92 S. Ct. 1620, 32 L. Ed. 152
(1972). Both were criminal cases. That point of confusion
was addressed by an editorial in the Salem Capitol Journal,
which explained that the “jury-size bill” was not so limited
and that the statements about the amendment applying to
only civil trials were erroneous:
“[A]fter going in and out of [legislative] committees
and getting rewritten and rewritten again, it ended up as
a jury-size bill [rather than a district court reform bill].
No longer is it limited to district courts but includes the
higher-level circuit courts as well. And no longer is it lim-
ited to civil cases, but would apply to criminal cases also.
We know this is so because we’ve read the legislative com-
mittee notes and talked with two staff lawyers who partic-
ipated in drafting and redrafting.
652 State v. Sagdal
“Yet the official Voters’ Pamphlet contains copy signed
by the bill’s sponsors which indicates otherwise. Apparently
this was written prior to the final amendments. No matter
how it happened, it’s misleading.
“Anyhow, the proposed amendment covers all courts and
all kinds of cases, but the legislature itself in the next ses-
sion could re-limit the matter.
“We recommend its passage despite its confusing and
misleading aspects, for it’s costly and unnecessary to have
big juries for all cases, and the supercautious legislature
certainly will retain them for major criminal matters.”
Vote yes on Measure No. 5, Capitol Journal, § 1 at 4 (November 1,
1972) (emphasis added).
We cannot accept defendant’s argument that we
should limit the effect of a constitutional amendment that
the voters adopted simply because of an editing error in the
voters’ pamphlet that was clearly at odds with the plain text
of the amendment, was contradicted by other statements
in the same voters’ pamphlet, and was addressed by a con-
temporaneous newspaper editorial available to the voters.
In that situation, it would stretch credulity to conclude that
the voters intended Article VII (Amended), section 9, to be
limited to civil cases, as defendant suggests. Thus, the text,
context, and history of Article VII (Amended), section 9,
show that it was intended to grant discretionary authority
to the legislature to provide for juries of six to 12 members
in all Oregon courts and in both civil and criminal cases,
but not to grant authority to legislate as to jury unanimity.
As noted, Article VII (Amended), section 9, relates
to only the authority of the legislature to determine the size
of juries. The 1934 amendment to Article I, section 11, on the
other hand, relates to jury unanimity—not to jury size—and
applies in only a “court or courts employing a jury of twelve.”
Osbourne, 153 Or at 489. Where this court has definitively
interpreted a constitutional provision, we assume that the
voters were aware of our earlier interpretation and would
have been explicit if they were seeking to modify the mean-
ing of the provision as interpreted. See Stranahan, 331 Or
at 61-62 (first level of analysis includes case law interpret-
ing the constitutional provision at issue, because it “helps to
Cite as 356 Or 639 (2015) 653
define the parameters of the nature of the rights conferred”
by the constitutional provision). Here, there is no indication
that, when the voters adopted Article VII (Amended), sec-
tion 9, they intended to change the pre-existing provision for
nonunanimous juries in Article I, section 11.
In sum, we interpret the 1934 amendment to
Article I, section 11, to provide that, when a trial court uses
a jury of 12, 10 members may render a verdict of guilty or
not guilty, except in cases of first-degree murder.10 That pro-
vision does not impose a constitutional requirement for a
jury of 10 or more persons in every criminal trial. In this
case, defendant was tried in circuit court for a single mis-
demeanor. The court empanelled a jury of six persons, as
directed by the legislature in ORS 136.210(2) and permitted
by Article VII (Amended), section 9. Contrary to defendant’s
argument, the provision of Article I, section 11, that “in the
circuit court ten members of the jury may render a verdict
of guilty or not guilty” does not apply to this case.
The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.
10
Because the six-person jury in this case was unanimous, we need not
decide whether a nonunanimous jury of less than twelve persons could be con-
stitutionally permissible. Cf. Burch v. Louisiana, 441 U.S. 130, 138, 99 S. Ct. 1623,
1627, 60 L. Ed. 2d 96 (1979) (conviction by nonunanimous six-person jury in state
criminal trial for nonpetty offense violated right to jury trial under Sixth and
Fourteenth Amendments).