State v. Savastano , 354 Or. 64 ( 2013 )

64 September 12, 2013 No. 37
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Petitioner on Review,
v.
TIFFANY LEE SAVASTANO,
Respondent on Review.
(CC C081586CR; CA A141053; SC S059973)
En Banc
On review from the Court of Appeals.*
Argued and submitted September 20, 2012; resubmitted
January 7, 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.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is affirmed.
______________
*  Appeal from Washington County Circuit Court, Thomas Kohl, Judge. 243
Or App 584, 260 P3d 529, adh’d to on recons, 246 Or App 566, 266 P3d 176 (2011).
Cite as 354 Or 64 (2013) 65
Defendant was accused of embezzling money from her employer in numerous
transactions over a period of 16 months, and the prosecutor aggregated those
transactions by month to provide clarity for the jury, indicting defendant on
16 counts of theft. Defendant moved to dismiss the indictment, arguing that it
violated Article I, section 20, of the Oregon Constitution because the prosecutor
did not apply a coherent, systematic policy when aggregating defendant’s theft
transactions. The trial court denied defendant’s motion, defendant entered
a conditional guilty plea, and, on appeal, the Court of Appeals reversed and
remanded. Held: (1) State v. Freeland, 295 Or 367, 667 P2d 509 (1983) is overruled;
(2) Article I, section 20, places the same limitation on other branches of government
that it places on the legislature; (3) to bring an individual-based claim under
Article I, section 20, a defendant must initially show that the government in fact
denied defendant individually an equal privilege or immunity with other citizens
of the state similarly situated; (4) an agency or official’s decision will comply with
Article I, section 20, as long as no discriminatory practice or illegitimate motive
is shown and the use of discretion has a defensible explanation in the individual
case, meaning there is a rational explanation for the differential treatment that
is reasonably related to the official’s task or to the person’s individual situation;
and (5) the prosecutor in this case had a reasonable and permissible basis for
aggregating the theft transactions.
The decision of the Court of Appeals is reversed. The judgment of the circuit
court is affirmed.
66 State v. Savastano
BALMER, C. J.
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. Spe-
cifically, 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, sys-
tematic 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 P2d 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 P3d 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 P2d
810, cert den, 454 U.S. 1084 (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
1
The state sought reconsideration to clarify the court’s disposition of the
case. The court clarified that it had not intended to dictate any particular remedy,
and instead had intended to remand the case for further proceedings. State v.
Savastano, 246 Or App 566, 568, 266 P3d 176 (2011).
Cite as 354 Or 64 (2013) 67
aggregation statute to aggregate those theft transactions:
“The value of single theft 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 defen-
dant 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 exer-
cise 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 look-
ing 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
2
A person commits first-degree aggravated theft if “[t]he value of the property
in a single or aggregate transaction is $10,000 or more.” ORS 164.057. A person
commits first-degree theft if “[t]he total value of the property in a single or aggre-
gate transaction is * * * $750 or more.” ORS 164.055(1)(a) (2007). ORS 164.055(1)(a)
was amended in 2009, and, among other changes, the legislature increased the
threshold value of property from $750 to $1000. Or Laws 2009, ch 16, § 3. We apply
the 2007 version of the law here—as did the Court of Appeals—because defendant’s
theft transactions and the indictment occurred before the 2009 amendment.
3
Article I, section 20, of the Oregon Constitution provides,“No law shall be passed
granting to any citizen or class of citizens privileges, or immunities, which, upon
the same terms, shall not equally belong to all citizens.”
68 State v. Savastano
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 individ-
uals and classes of individuals. Savastano, 243 Or App at
588; see also Clark, 291 Or at 237 (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] per-
son’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. 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 (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 privi-
lege 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 consistent standards to represent
a coherent, systematic policy[’]?”
Id. (quoting Freeland, 295 Or at 375).4
4
As we discuss below, the Court of Appeals did not read Freeland to require
defendant to show that she had been treated less favorably than any other
particular defendant, and she in fact made no such showing. Rather, the court
appears to have concluded that it was sufficient for defendant to show that there
were multiple ways in which the charges against her could have been aggregated,
at least some of which would have been more favorable to her than the aggregation-
by-month that the prosecutor used, see 243 Or App at 587 (noting that defendant
could have been charged with as few as three counts or as many as one count for
Cite as 354 Or 64 (2013) 69
Applying that two-part test, the Court of Appeals
first concluded that the way in which multiple theft trans-
actions are aggregated into a smaller number of criminal
charges is of constitutional magnitude because of a defen-
dant’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. 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.
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 P2d 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
each of the alleged theft transactions), and that the prosecution’s choice was not
the result of a coherent, systematic policy. That analysis and result is consistent
with Freeland, where the defendant was charged by what the court viewed as
the permissible but less favorable grand jury indictment, although the prosecutor
could have charged the defendant by means of the more favorable preliminary
hearing procedure. 295 Or at 372-74.
70 State v. Savastano
court to reconsider and significantly narrow its prior analy-
sis of both individual-based and class-based claims under
Article I, section 20. To narrow that analysis, the state advo-
cates overturning some of this court’s prior cases, including
Clark and Freeland.
Alternatively, the state argues, even if Article I,
section 20, does apply to individual-based claims arising
from a prosecutor’s charging decisions, a prosecutor is not
required to make those decisions according to a coherent, sys-
tematic policy. Rather, the prosecutor merely has to show
that the decision was rational and was not based on imper-
missible criteria. Moreover, the state asserts, the prosecutor
has to make that showing only after the defendant has
demonstrated that he or she in fact was treated differently
from similarly situated defendants.
Defendant responds that examination of Article I,
section 20, using the Priest methodology reveals that that pro-
vision was intended to prevent the government from grant-
ing privileges or immunities in an inequitable or arbitrary
way, which would include a prosecutor arbitrarily aggregating
theft transactions. In addition to relying on the text and
history of Article I, section 20, defendant traces this court’s
cases—including Clark, Freeland, and others—to support her
argument that the prosecutor violated Article I, section 20,
because he exercised his discretion to aggregate the theft
transactions in the absence of any policy to guide that dis-
cretion. Defendant argues that the state has not met its
burden of showing why this court should overturn its prior
cases, including Freeland. Moreover, defendant argues, even
if this court, considering the facts in Freeland anew, would
have reached a different result, the rationale behind that
decision remains sound.
At the outset, we note that the Court of Appeals was
correct to apply Freeland in this case, because Freeland also
involved an individual-based Article I, section 20, challenge
to prosecutorial discretion involving charging decisions.
Specifically, Freeland involved the prosecutor’s discretion in
determining whether to charge a defendant by indictment
or by preliminary hearing. 295 Or at 372-73. Moreover, as
discussed more fully below, although this court’s application
Cite as 354 Or 64 (2013) 71
of Freeland has not always been easy to square with the text
of that opinion, the Court of Appeals relied on the standard
articulated in Freeland. That is, after the court determined
that a privilege or immunity was at issue, the court analyzed
whether the prosecutor had applied “ ‘sufficiently consistent
standards to represent a coherent, systematic policy[.]’  ”
Savastano, 243 Or App at 588 (quoting Freeland, 295 Or at
375).5 Although defendant here did not identify anyone
who had received more favorable treatment than she did,
the court read Freeland to dispense with that requirement:
“[U]nlawful discrimination occurs when the state distributes
a benefit or burden in a standardless, ad hoc fashion, without
any ‘coherent, systematic policy.’ ” Id. (quoting Freeland, 295
Or at 375). Rather than requiring a showing of a similarly
situated defendant who had been treated more favorably, the
court held that a defendant could prevail if he or she could
“establish[  the lack of criteria or, if there are criteria, the
]
lack of consistent enforcement.” Id. That reading of Freeland
seems correct, as the defendant there did not identify any
particular, similarly situated individual who was charged by
means of a preliminary hearing rather than by grand jury
indictment—although no one disputed that some defendants
in Multnomah County were charged by the former procedure.
It was sufficient in Freeland for the defendant to show that
he might have received less favorable treatment than some
other defendants, and that the prosecutor’s choice to provide
that less favorable treatment was not made pursuant to a
coherent, systematic policy.
The Court of Appeals applied Article I, section 20,
as interpreted in Freeland, and concluded that, because the
prosecutor admitted that no policy for aggregating theft
5
In undertaking the privilege or immunity analysis, the Court of Appeals
reasoned,
“[T]he state’s decision has obvious and serious consequences; depending on how
the prosecution chooses to aggregate the theft transactions, defendant could
have been burdened, or not, with the need to defend against a multitude of
minor charges, and could have faced possible penalties of varying seriousness.
*  * [T]he privileges or immunities faced by defendant here are clearly of
*
constitutional magnitude.”
Savastano, 243 Or App at 588-89. We agree with the Court of Appeals that the
privileges or immunities at issue in this case are of constitutional magnitude and
therefore do not address that issue further.
72 State v. Savastano
transactions existed, and because he did not indicate that the
criteria that he used in this case were consistently applied,
defendant’s Article I, section 20, rights were violated. Id. at
589-90. We cannot say that the Court of Appeals’ application
of Freeland was incorrect.
III.  RECONSIDERATION OF FREELAND
That does not end our inquiry, however. Because
defendant would prevail under Freeland, as the Court of
Appeals concluded, we must next address the state’s argu-
ment that application of the Priest methodology to Article I,
section 20, demonstrates that Freeland should be overruled
because Article I, section 20, does not require a prosecutor to
apply a “coherent, systematic policy” to a charging decision
like the one at issue here. Thus, we turn to examining the
meaning of Article I, section 20, and specifically to whether
it requires government entities to apply such a “policy” in
granting a privilege or immunity.6
In undertaking the inquiry outlined in Priest, our
goal is to identify the historical principles embodied in the
text of Article I, section 20, and to apply those principles
faithfully to modern circumstances as they arise. Coast
Range Conifers v. Board of Forestry, 339 Or 136, 142, 117 P3d
990 (2005). Put differently, the historical inquiry set out
in Priest invites us to identify the principles that Article I,
section 20, was intended to advance, while recognizing that
the scope of that provision is not limited to the historical
circumstances surrounding its adoption. See Hewitt v. SAIF,
294 Or 33, 46, 653 P2d 970 (1982) (recognizing that Article I,
section 20, extends protection to classes of citizens who were
not protected when Oregon adopted its constitution in 1859).
6
Although we reconsider Freeland, as requested by the state, we reject
the state’s argument that we should reconsider and “realign the entirety of the
court’s Article I, section 20, analysis with the intent of the framers.” This case
does not require us to reconsider the application of Article I, section 20, to claims
of discrimination against classes of individuals. Moreover, as discussed later,
we reject the state’s suggestions that Article I, section 20, applies only to the
enactment of laws and not to their implementation and that it applies only to
economic privileges. For those reasons, we agree with several of the arguments set
out in the brief of amicus curiae ACLU Foundation of Oregon, Inc., and find others
unnecessary to address in this case.
Cite as 354 Or 64 (2013) 73
A.  Text and History of Article I, Section 20
We begin with the text of Article I, section 20, which
provides: “No law shall be passed granting to any citizen or class
of citizens privileges, or immunities, which, upon the same terms,
shall not equally belong to all citizens.”
That section consists of an independent clause and a depen-
dent clause. The independent clause is directed to the leg-
islature. It provides that “[n]o law shall be passed granting
to any citizen or class of citizens privileges, or immunities[.]”
The dependent clause qualifies what would otherwise be an
almost absolute prohibition on lawmaking, because lawmak-
ing almost always involves or establishes some advantage
or disadvantage for some group of citizens. The dependent
clause permits laws granting privileges or immunities to any
citizen or class of citizens as long as the privileges or
immunities belong “equally” to all citizens “upon the same
terms.”
At first blush, the two clauses in Article I, section 20,
appear antithetical. Read together, they prohibit a law grant-
ing a privilege or immunity to one citizen or a class of
citizens unless the privilege or immunity is available to all
citizens upon the same terms. As this court has recognized,
the inclusion of the word “equally” resolves the tension
between the two clauses and permits the legislature to draw
classifications among citizens in granting privileges and
immunities. Specifically, the court has recognized that
requiring privileges or immunities to be granted “equally”
permits the legislature to grant privileges or immunities to
one citizen or class of citizens as long as similarly situated
people are treated the same. In re Oberg, 21 Or 406, 410-
11, 28 P. 130 (1891). Accordingly, this court held in Oberg
that a statute exempting sailors but no one else from arrest
for debt did not run afoul of Article I, section 20, because it
“prescribe[d] the same rule of exemption to all persons placed
in the same circumstances.” Id. at 408.7 Thus, the text of
7
In explaining why the legislature could conclude that other debtors were not
similarly situated to sailors, the court offered three rationales. First, it explained
that, at least on its face, the law was open ended: “[A]ny citizen desiring such
immunity may have it in the words of the constitution, ‘upon the same terms,’ by
becoming a sailor.” Oberg, 21 Or at 408. Second, the court reasoned that, because
different occupations may pose separate concerns, the legislature can enact laws
74 State v. Savastano
Article I, section 20, places a limit on the legislature’s ability
to draw classifications among citizens in enacting laws,
but a requirement that the government apply a coherent,
systematic policy—or any policy at all—in all decisions
involving its citizens is not apparent from the text.
Similarly, the history of Article I, section 20, does
not support a general requirement that the government must
make decisions according to a “systematic policy.” No record
exists of any discussion of Article I, section 20, in the
debates over the Oregon Constitution. See Claudia Burton
and Andrew Grade, A Legislative History of the Oregon
Constitution of 1857 - Part I (Articles I & II), 37 Willamette
L rev 469, 532-33 (2001). We know, however, that the pro-
vision was taken from the Indiana Constitution of 1851,
Clark¸ 291 Or at 236, 236 n 7, and that it finds its roots in
early colonial declarations of rights. See David Schuman, The
Right to “Equal Privileges and Immunities”: A State’s Version
of “Equal Protection,” 13 Vt L rev 221, 223 (1988) (tracing
the history of equal privileges and immunities clauses). We
also know that state constitutions drafted between 1840 and
1880 sought to address abuses that included “revealed fraud
and corruption in public-land dealings and in the getting and
granting of franchises, subsidies, and rate privileges for turn-
pikes, canals, river improvements, toll bridges, and, of course,
especially railroads and street railways.” James Willard
Hurst, The Growth of American Law: The Law Makers 241-
42 (1950).
The historical usage of the phrase “privileges, or
immunities” points in the same direction. Before the revolution,
one legal dictionary defined a “privilege” as consisting of four
elements: “(1) a benefit or advantage; (2) conferred by positive
law; (3) on a person or place; (4) contrary to what the rule
would be in absence of the privilege.” Robert G. Natelson, The
Original Meaning of the Privileges and Immunities Clause, 43
that apply only to a single occupation without engaging in prohibited “class legis-
lation.” Id. at 409-10. The third rationale was a variation on the second. The court
observed that, because the “object of the act * * * was to aid and extend our foreign
commerce by protecting sailors and preventing such burdens or exactions from
being laid upon shipping as would discourage vessels from frequenting our ports,”
Article I, section 20, did not prevent the legislature from enacting an exemption for
sailors that advanced only that legislative objective. Id. at 410.
Cite as 354 Or 64 (2013) 75
Ga L rev 1117, 1130 (2009) (summarizing prerevolutionary
legal dictionary definition). It also appears that
“ ‘immunity’ and ‘privilege’ were reciprocal words for the same
legal concept. Because an immunity was a benefit, other-
wise contrary to law, given to a person or place by special
grant, it was a privilege.”
Id. at 1133-34; accord Campbell v. Morris, 3 H & McH 535,
553 (Md 1797) (explaining that the terms “[p]rivilege and
immunity are synonymous, or nearly so”).
In the period leading up to the Civil War, the phrase
“privileges and immunities” ordinarily referred to state-
created rights. See Kurt T. Lash, The Origins of the Privileges
or Immunities Clause, Part I: “Privileges and Immunities” as
an Antebellum Term of Art, 98 Geo LJ 1241, 1253, 1260-61
(2010).8 A grant of privileges and immunities was not always
viewed positively, however. During the Jacksonian era, news-
paper editorials “commonly decried ‘the possession of privi-
leges or immunities, in which ninety-nine hundredths of the
community, by the very nature of their situation, are denied
all participation,’ and they vilified the ‘ “privileged order” * * *
on whom the law confers certain privileges or immunities
not enjoyed by the great mass of the people.’  Id. at 1256-
”
57 (quoting editorials) (ellipses in Lash; footnote omitted).
Consistent with that concern, state constitutional privileges
and immunities clauses drafted during and shortly after
that period sought to prevent the government from granting
benefits only to a favored few. See id. at 1257. Article I,
section 20, was no exception to that trend. See Clark, 291 Or
at 236 (explaining that the “language [of Article I, section
20,] reflects early egalitarian objections to favoritism and
special privileges for a few”).
The history reveals that, in borrowing Article I,
section 20, from Indiana, the framers were acting in response
8
In Salem College & Academy, Inc. v. Emp. Div., 298 Or 471, 488 n 13, 695 P2d 25
(1985), this court explained that the phrase “privileges, or immunities” in Article I,
section 20, is not limited to the fundamental rights that Justice Washington
identified in Corfield v. Coryell, 6 Fed Cas 546 (1823). More recently, commentators
have questioned whether Justice Washington’s identification of the fundamental
rights protected by the federal Privileges and Immunities Clause is consistent with
other cases from that period recognizing that the federal clause protects a limited
set of state-created rights. See Lash, 98 Geo LJ at 1271 (summarizing discussion).
76 State v. Savastano
to legislative grants of privileges to a favored few. Viewed
more abstractly, Article I, section 20, limited the criteria that
government can use in granting privileges and immunities.
It is difficult, however, to go beyond that and find in the
history of that provision a requirement that executive agen-
cies (or other branches of government, for that matter)
standardize their decision making.
The state argues that Article VII (Original), section
17, of the Oregon Constitution provides additional historical
context that clarifies how Article I, section 20, interacts with
the role of prosecutors. Article VII (Original), section 17,
creates the office of district attorney:
“There shall be elected by districts comprised of one, or more
counties, a sufficient number of prosecuting Attorneys, who
shall be the law officers of the State, and of the counties
within their respective districts, and shall perform such
duties pertaining to the administration of Law, and general
police as the Legislative Assembly may direct.”
The state argues that prosecutors historically had discre-
tionary authority regarding whether and how to bring
charges and that attempts to limit that discretion did not
emerge until well after the Oregon Constitution was adopted.
Therefore, the state reasons, the framers intended prosecutors
to have discretion that would not be limited by Article I,
section 20. Defendant responds that the decision to create
the office of district attorney in no way indicates an intent to
exempt district attorneys from the requirements of Article I,
section 20; in fact, defendant notes, the district attorneys’
duties were to be set by the legislature, and even the state
accepts that the legislature is subject to Article I, section 20.
The additional historical context of Article VII
(Original), section 17, does not change the historical analysis
of Article I, section 20. Similarly to Article I, section 20,
Article VII (Original), section 17, does not indicate an intent
to require consistency or policies in prosecutorial decisions;
but neither does it indicate an intent for prosecutors to
have unbridled discretion outside the bounds of Article I,
section 20, particularly given the legislature’s control over
prosecutors’ duties.
Cite as 354 Or 64 (2013) 77
B.  Early Cases Interpreting Article I, Section 20
Having considered the text and history of Article I,
section 20, we turn to this court’s cases interpreting it.
Most of this court’s decisions have addressed challenges to
legislative classifications.9 As such, they did not address the
issue raised here. We begin with five of this court’s early
decisions involving individual-based claims, which addressed
either laws or executive decisions granting privileges or
immunities to a single citizen. We then discuss Clark and
Freeland. Finally, we discuss this court’s decisions applying
Freeland.
The first five decisions divide into two groups: One
decision treated Article I, section 20, as a counterpart to
constitutional provisions prohibiting special or local laws,
see Altschul v. State, 72 Or 591, 596-97, 144 P. 124 (1914),
and the other four decisions addressed situations where the
government had granted one person a monopoly. In Altschul,
the legislature had granted one person (the plaintiff) the
right to bring a suit against the state to determine his
interest in land held by the state. Id. at 595. The state
demurred to the plaintiff’s suit on the ground that the stat-
ute authorizing that suit violated Article IV, section 24,
which prohibits “special act[s]” permitting suits to be brought
against the state; Article IV, section 23, which prohibits
“special or local laws” in certain classes of cases; and Article I,
section 20. The court held that the statute violated all three
constitutional provisions. Id. at 596-97.
The court’s analysis under Article I, section 20, con-
sisted of a single sentence. It held that the statute “grant[ed]
to the plaintiff [t]here a privilege which [was] not extended
to any other person in the state, and hence [was] in conflict
with Article I, section 20.” Id. at 596. In grouping Article I,
9
For much of this court’s history, it analyzed challenges to legislative classi-
fications under Article I, section 20, and the Equal Protection Clause of the
Fourteenth Amendment the same way. See City of Klamath Falls v. Winters, 289
Or 757, 769-70 n 10, 619 P2d 217 (1980), appeal dismissed, 451 U.S. 964, 101 S. Ct.
2037, 68 L. Ed. 2d 343 (1981) (explaining that “[t]his court has consistently held
that the scope of these two provisions is the same”). In Clark, the court interpreted
Article I, section 20, independently from the federal constitution, while recognizing
that “for most purposes analysis under Article I, section 20 and under the federal
equal protection clause will coincide” in the result, if not the reasoning. 291 Or at
243.
78 State v. Savastano
section 20, with Article IV, sections 23 and 24, the court
appears to have treated the prohibition against laws grant-
ing a privilege or immunity to “any citizen” as a species of
constitutional provisions prohibiting special or local laws. Cf.
Jeffrey M. Shaman, Equality and Liberty in the Golden Age of
State Constitutional Law 31 (2008) (noting the relationship
between privileges and immunities clauses and clauses pro-
hibiting special or local laws). To the extent that Altschul
holds that Article I, section 20, prohibits laws addressed to
only a single person, that decision seems inapposite when
applied to executive acts, which, by definition, often require
acting only in individual cases.
As noted, the other four decisions addressed either
statutes or agency decisions giving one person a monopoly.
The first and most comprehensive of those decisions was
White v. Holman, 44 Or 180, 74 P. 933 (1904). In that case, the
legislature had authorized a board to issue licenses to run
sailors’ boarding houses to “any person, firm, or corporation”
that presented “satisfactory evidence * * * of the respectability
and competency of such applicant, and of the suitableness of
his or their accommodations, and of his or their compliance
with all the provisions of this act.” Id. at 182-83 (describing
the statutory criteria for issuing licenses) (internal quotation
marks omitted). The board, however, had not followed those
statutory criteria in denying a license to the plaintiffs in
White. Id. at 183. Rather, the board had denied the plaintiffs
a license based on the wishes of shipping companies, which
had directed the board “to limit the business to only one
sailors’ boarding house at Portland.” Id. at 181-82.
The question, as this court framed it in White, was
whether the board could grant a monopoly consistently with
Article I, section 20.10 In resolving that question, the court
explained that a board charged with implementing a statute
“can exercise no greater power than was possessed by the
legislative assembly” in enacting it. Id. at 192. In holding
that a board could not grant a license to only one applicant,
the court concluded that the board had used a criterion that
10
The court could have decided the case on the ground that the board had not
followed the statutory criteria in denying the license. It did not take that course,
however.
Cite as 354 Or 64 (2013) 79
Article I, section 20, did not permit either the legislature or
the board to use.
Specifically, the court started from the premise that
“[t]he keeping of a sailors’ boarding house is, in our opinion, a
legitimate business, in the performance of which any citizen
may engage as a matter of common right[.]” Id. at 191. It
followed that the legislature could deny a license to run such
a house only if it had a reasonable ground for doing so. See
id. at 191-92. On that point, the court explained that the
legislature could seek to deny licenses to persons who might
take advantage of sailors’ susceptibility to temptations once
they reached shore. See id. at 189-91 (describing, at some
length, the temptations to which sailors habitually fell
prey while on shore). The board, however, had not based its
decision to deny a license to the plaintiffs on that ground.
Rather, the board arbitrarily had excluded what otherwise
may have been qualified applicants from receiving a license
based only on the wishes of the shipping industry. Id. at
192. Under Article I, section 20, this court held, neither the
legislature nor the board could do that. Id.11
The other three decisions held that neither the
legislature nor a board may grant an exclusive right to
fish in one area of a navigable stream, because the right
to fish in those waters is held in common by all citizens.
Monroe v. Withycombe, 84 Or 328, 341, 165 P. 227 (1917);
Eagle Cliff Fishing Co. v. McGowan, 70 Or 1, 15, 137 P. 766
(1914), appeal dismissed, 248 U.S. 589, 39 S. Ct. 5, 63 L. Ed. 435
(1918); Hume v. Rogue River Packing Co., 51 Or 237, 259,
92 P. 1065 (1907). Citing White and Article I, section 20, the
court reasoned in Hume that granting an exclusive right to
fish was comparable to granting a monopoly, without any
legitimate basis for giving only one person a right that the
people held in common. 51 Or at 259-60. Following Hume
and Eagle Cliff Fishing, the court reasoned in Monroe that,
in light of the public’s right to fish for salmon, neither the
legislature nor the Fish Warden could “authorize only one
person to fish for salmon for his own personal benefit and
11
The court reasoned that, because the legislature “could not create a monop-
oly of a legitimate business in which every person can engage of common right,
a fortiori, its creatures, the board, are likewise prohibited from doing so.” White,
44 Or at 192.
80 State v. Savastano
private profit without any advantage to the public.” 84 Or at
338, 341.
White and Monroe thus recognized that Article I,
section 20, applies not only to the legislature but also to
other branches of government. Both White and Monroe also
made clear that, under Article I, section 20, the same limi-
tations that apply to the legislature in enacting laws apply
to other government entities when they take action in an
individual case. That is, the government may not use a classi-
fication or criterion to decide an individual case that the
legislature could not use in enacting a law. Neither White nor
Monroe went beyond that, however. None of the early decisions
interpreting Article I, section 20, held or suggested that that
section requires systematic consistency in government deci-
sion making, which is the lynchpin of the Court of Appeals
decision, applying Freeland, in this case. Savastano, 243 Or
App at 590 (“We require only consistent, systematic criteria,
and that those criteria be permissible.”).
One other case deserves discussion because it is
sometimes cited as precedent for the individual branch of
Article I, section 20, analysis. In State of Oregon v. Cory, 204
Or 235, 237, 282 P2d 1054 (1955), the defendant challenged
a statute that authorized increased punishment for persons
convicted of two or more felonies within five years. See Or
Laws 1947, ch 585, §§ 1, 2. As amended in 1951, the statute
provided that, if, within two years of a defendant’s conviction,
the prosecutor learned that the defendant previously had
been convicted of a nonviolent felony, the prosecutor “  ‘may,
immediately file an information accusing the person of the
previous convictions.’ ” See Cory, 204 Or at 237-38 (quoting
the amended statute).
The defendant in Cory focused on the phrase “may
*  * file.” He argued that giving a prosecutor discretion to
*
charge him as an habitual offender violated “the Equal
Protection Clauses of the state and federal constitutions.” Id.
at 237. Relying on an earlier case that had been decided on
the basis of the federal Equal Protection Clause, the court
held that the statute “giv[ing] the district attorney unlimited
authority to proceed or not to proceed at all against a convicted
Cite as 354 Or 64 (2013) 81
felon in personal, nonviolent cases * * * [was] unconstitutional.”
Id. at 239-40.
Cory’s precedential value for interpreting Article I,
section 20, is limited. Although the court mentioned “the
Equal Protection Clauses of the state and federal constitu-
tions,” id. at 237, it undertook no independent analysis of
Article I, section 20. Rather, it relied on the decision issued
one month earlier in State of Oregon v. Pirkey, 203 Or 697,
281 P2d 698 (1955), which had described the two constitu-
tional provisions as “similar limitations upon legislative
action” and which had relied almost exclusively on federal
equal protection decisions in holding another statute
unconstitutional. See id. at 703-04. Cory’s persuasive value
also is suspect. The statute providing that prosecutors “may
* * * file” an information, which the court held unconstitutional
in Cory, is difficult to distinguish from the discretion that
prosecutors customarily enjoy to file or not file charges. Not
only would Cory’s reasoning, taken to its logical conclusion,
render all prosecutorial discretion to bring or not bring
criminal charges unconstitutional, but the United States
Supreme Court unanimously has rejected the federal equal
protection theory on which both Pirkey and Cory rested. See
United States v. Batchelder, 442 U.S. 114, 124-25, 99 S. Ct. 2198,
60 L. Ed. 2d 755 (1979).
C. Clark and Freeland
Having considered the primary cases involving the
individual branch of Article I, section 20, that preceded Clark
and Freeland, we turn to those decisions. In Clark, the defen-
dant raised two separate Article I, section 20, challenges.
He argued initially that the prosecutor had denied him a
privilege afforded other defendants, because the prosecutor
had charged him by indictment rather than by means of a
preliminary hearing. The defendant argued that the state
had violated his Article I, section 20, rights because both
procedures were available, one of them (the preliminary
hearing) was a “privilege” of constitutional magnitude, and
the state had denied him that privilege. The defendant con-
tended that he was not required to show that any similarly
situated defendant had been given a preliminary hearing.
Alternatively, he argued that the prosecutor had violated
82 State v. Savastano
Article I, section 20, when he granted immunity to two of
his potential codefendants but not to him.
In resolving the defendant’s arguments, the court
explained that Article I, section 20, is “a guarantee against
unjustified denial of equal privileges or immunities to indi-
vidual citizens at least as much as against unjustified differ-
entiation among classes of citizens.” Clark, 291 Or at 239.
Regarding the denial of equal privileges or immunities to an
individual citizen, the court explained that Article I, section
20, calls for an “analysis whether the government has made or
applied a law so as to grant or deny privileges or immunities
to an individual person without legitimate reasons related
to that person’s individual situation.” Id. In stating the applic-
able standard in Clark, the court focused on the legitimacy of
the government’s reasons in an individual case; that is, Clark
explained that an executive decision granting or denying a
person privileges or immunities “without legitimate reasons
related to that person’s individual situation” would be an
“unjustified denial of equal privileges or immunities to [an]
individual citizen[ ].” Id.
Applying that standard, the court rejected the defen-
dant’s first argument—that the mere existence of discretion
to charge a defendant by means of a preliminary hearing or
an indictment violated Article I, section 20. On that issue,
the court held:
“Without a showing that the administration of [those two
charging procedures] in fact denied [the] defendant indi-
vidually, or a class to which he belongs, the equal privilege
of a preliminary hearing with other citizens of the state
similarly situated, the circuit court did not err in denying
the motion to dismiss the indictment.”
Id. at 243. Because the defendant had made no such showing
regarding the prosecutor’s decision to proceed by indictment,
the court had no need to decide—and did not decide—when
the “administration” of those procedures would violate the
state equal privileges or immunities clause. That is, because
the defendant had not shown that he was denied “the equal
privilege of a preliminary hearing with other citizens of the
state similarly situated,” the court did not further examine
Cite as 354 Or 64 (2013) 83
the prosecutor’s decision to proceed by indictment. Id.; see
also id. at 242 (rejecting the conclusion that the difference
between “two available procedures necessarily represents a
denial of equal protection of the laws, regardless of showing
which defendants receive one or the other procedure”).
In contrast, the court did review the merits of the
defendant’s immunity argument because the defendant had
shown that he in fact was treated differently from his poten-
tial codefendants. As noted, the defendant argued that the
prosecutor’s decision to grant immunity to two of his poten-
tial codefendants but not to him violated Article I, section
20. Specifically, he contended that Article I, section 20, pro-
hibited the prosecutor from exercising discretion without
previously stated standards. The court disagreed, explaining
that a prosecutor would comply with Article I, section 20,
“as long as no discriminatory practice or illegitimate motive
is shown and the use of discretion has a defensible expla-
nation.” Id. at 246. On that issue, the prosecutor explained
that he had treated the defendant differently from his poten-
tial codefendants because the defendant had been the insti-
gator of the crime, and the court held that the prosecutor’s
explanation satisfied Article I, section 20. Id. Not only had the
defendant failed to show a discriminatory practice or motive,
but the reason that the prosecutor gave was “defensible.” Id.
To be sure, Clark recognized that an individual citi-
zen can argue under Article I, section 20, that the prosecutor
either acted for a discriminatory or illegitimate motive or
had no “defensible explanation” for his or her action. But
defendant here does not argue that the prosecutor aggre-
gated the theft transactions based on a discriminatory or
illegitimate motive, and the Court of Appeals did not base
its decision on the prosecutor’s failure to provide an expla-
nation as “defensible” as the one provided in Clark. In fact,
the Court of Appeals noted that the prosecutor cited the
criterion of jury clarity, and the court did not indicate that
the use of that criterion was impermissible under Clark;
however, in this case, the Court of Appeals went on to note
that the prosecutor “did not argue that the criterion was
a department-wide or consistent policy.” Savastano, 243 Or
App at 589. Thus, the Court of Appeals’ decision was not
84 State v. Savastano
grounded in the interpretation of Article I, section 20, set
forth in Clark.
Instead, the Court of Appeals in this case applied
the interpretation of Article I, section 20, in Freeland, and
we turn to that case. In Freeland, as in Clark, the defendant
was indicted by a grand jury and denied a preliminary hear-
ing. In contrast with the defendant in Clark, however, who
had made no showing regarding the district attorney’s
practice in submitting cases to the grand jury rather than
having a preliminary hearing, the defendant in Freeland
adduced testimony from the district attorney and a deputy
district attorney regarding the factors they considered in
making those decisions. Those individuals testified that the
district attorney’s office had a written policy that, in cases
of rape or sexual assault and in cases involving youthful
victims, the prosecution generally would avoid preliminary
hearings in deference to the victims. Freeland, 295 Or at
379. In other cases, the decision was entrusted to the deputy
district attorney assigned to the case, who would apply
various criteria, including whether the defendant was in
custody, whether the crime was a property crime or a person
crime, the complexity of the case, the amount of judicial
time required for a preliminary hearing, the availability of
witnesses, and many other factors. See id. at 379-80; see also
State v. Freeland, 58 Or App 163, 166-69, 647 P2d 966 (1982)
(both summarizing testimony). Both the district attorney
and the deputy district attorney assigned to the case testified
that “the treatment of [the] defendant’s case was no differ-
ent from that of any other similar case.” Freeland, 58 Or App
at 168-69.
The trial court applied what it stated was its “under-
stand[ing]” of Clark and State v. Edmonson, 291 Or 251, 630
P2d 822 (1981),12 concluding that, in Multnomah County, the
12
State v. Edmonson, 291 Or 251, 630 P2d 822 (1981) was a brief opinion
issued the same day as Clark in which this court followed Clark and rejected a
defendant’s claim that “the simple coexistence” of the grand jury and preliminary
hearing procedures violated Article I, section 20. 291 Or at 253. As in Clark, the
court stated that the defendant had failed to show how the administration of the
choice of procedure denied him, as an individual or a class member, any privilege or
immunity. Id. at 253-54. The case contains no legal analysis of the equal privileges
or immunities provision beyond that in Clark, but does use different phrasing than
Clark in requiring that government actions must “uniformly rest on meaningful
criteria” that make the benefit equally available to all similarly situated people and
Cite as 354 Or 64 (2013) 85
choice between proceeding by indictment or preliminary
hearing did not “ “uniformly rest on meaningful criteria
‘
thatindeed make the privileges of a preliminary hearing
equally available to all persons similarly situated.”  ’
”
Freeland, 295 Or at 381 (quoting trial court opinion (quoting
Edmonson, 291 Or at 254)). The trial court explained that,
because the decision was made at the discretion of the pros-
ecutor and based, at least in part, on “logistical” and “tactical”
criteria, the “ ‘choice of procedure is administered “purely
haphazardly or otherwise on terms that have no satisfactory
explanation” ’ ” under Article I, section 20. Id. (quoting trial
court opinion (quoting Edmonson, 291 Or at 254)).
The Court of Appeals reversed, noting that although
Clark and Edmonson were susceptible of different readings,
in its view those decisions did not “require clearly delineated
categories” that would determine the choice of indictment or
preliminary hearing in every case. Freeland, 58 Or App at
171. The Court of Appeals observed that the criteria described
at trial “[did] not, on their face, classify or treat persons dif-
ferently on the basis of personal characteristics or as mem-
bers of a disfavored minority or, for that matter, any imper-
missible class.” Id. at 172. Indeed, based on the record, the
court concluded, “Defendant ha[d] not shown that he was
treated differently from other defendants similarly situated
(at least in Multnomah County) * * *.” Id.
On review, this court reversed the Court of Appeals.
The court recognized that the case called for “a further analy-
sis” of Article I, section 20, than the court had undertaken in
Clark. Freeland, 295 Or at 372. In Freeland, the defendant
did not argue, as the defendant in Clark had, that the
existence of discretion to charge a defendant by indictment
or preliminary hearing was sufficient, without more, to vio-
late Article I, section 20. Rather, he “challenge[d] *  * the
*
terms upon which the prosecution based its refusal of a
preliminary hearing to [him].” Id. This court allowed review
“to address the issues of administering preliminary hearings
‘upon the same terms’ for similarly situated defendants” that
prohibiting privileges that are administered “purely haphazardly or otherwise on
terms that have no satisfactory explanation” under Article I, section 20. Id. The trial
court in Freeland relied on those statements, as did this court in affirming the trial
court. Freeland, 295 Or at 381.
86 State v. Savastano
it had not been able to reach in its earlier cases. Id. at 369.
The court thus confronted the defendant’s challenge to the
prosecutor’s administration of the two different charging
procedures.
In resolving that challenge, the court focused on
whether, in the absence of prior rulemaking, the individual
decisions made by the district attorney’s office reflected a
sufficiently consistent pattern or policy to satisfy Article I,
section 20. Relying on Clark and Edmonson, the court held
that Article I, section 20, prohibits “ ‘[h]aphazard’ or standard-
less administration, in which the procedure is chosen ad hoc
without striving for consistency among similar cases.” Id. at
374. The question, the court stated, was whether the prose-
cutor’s decision of which charging procedure to use “adhere[d]
to sufficiently consistent standards to represent a coherent,
systematic policy, even when not promulgated in the form of
rules or guidelines.” Id. at 375 (emphasis added).13 Although
the defendant did not complain of discrimination against him
because of any personal characteristic and did not identify
any particular person similarly situated to him who was given
a preliminary hearing when he was not, this court never-
theless held that the case
“[fell] within the principle that equal treatment may not be
denied ‘haphazardly’ by ad hoc decisions that *  * do not
*
‘uniformly rest on meaningful criteria that indeed make
the privileges of a preliminary hearing equally available
to all persons similarly situated, or, in the constitutional
phrase, “upon the same terms.” ’ ”
Id. at 381 (quoting Edmonson, 291 Or at 254 (quoting Article I,
section 20)).14
13
The court also observed that some criteria for making the procedural
decision—even apart from discrimination for or against an identifiable social
group—may be “valid” or “permissible,” and other criteria may not be. Freeland,
295 Or at 373 (identifying “permissible” criteria); id. at 375 (considering whether
reasons for using one procedure rather than another would be “valid”). And some
aspects of the court’s opinion suggest that certain of the considerations identified
by the district attorney’s office may not be permissible criteria. Id. at 381-82 (ques-
tioning reliance on, among other things, insufficient time to complete a preliminary
hearing). However, the unambiguous holding of Freeland, as discussed in the text,
is that the potential for haphazard and inconsistent application of the criteria is
sufficient to constitute an Article I, section 20, violation.
14
Justice Jones dissented, arguing, inter alia, that the defendant had failed to
show that the prosecutor’s decision to proceed by indictment was based on some
Cite as 354 Or 64 (2013) 87
Elsewhere in the opinion, the court appeared to
respond to the state’s argument—and the testimony from
the district attorney’s office—that the defendant had failed
to show that he was denied a privilege that a similarly situ-
ated person had been granted. Rather than requiring a show-
ing of unequal treatment, the court seemed instead to take
the position that, in the absence of a “coherent, systematic
policy”—and given the wide range of factors identified by the
district attorney’s office as relevant to the decision—the
risk of unequal treatment was sufficient to violate Article I,
section 20. For example, the court stated that, unless “suf-
ficiently consistent standards” are applied, the “administra-
tion of the system ‘upon the same terms’ toward similarly
situated defendants cannot be assured.” Id. at 375. Similarly,
in describing the potential for treating similarly situated
defendants differently because of the myriad criteria iden-
tified by the district attorney’s office, the court observed that
one person accused of participating in a robbery “might” be
afforded a preliminary hearing and another, under identical
circumstances, “might” be denied one because the assigned
deputy district attorney did not wish to subject his witnesses
to cross-examination. Id. at 381. Again, in the court’s view,
the requirement of consistently applied standards would pre-
vent that potential problem. Thus, the “coherent, systematic
policy” test announced by the court apparently was intended
as a prophylactic rule to prevent the possibility of differential
treatment of similarly situated persons.
Applying the standard that it had articulated, this
court in Freeland concluded that the district attorney’s deci-
sion to proceed against the defendant by way of indictment,
rather than preliminary hearing, violated Article I, section 20,
and it affirmed the trial court’s dismissal of the indictment.
Id. at 381, 384.
D.  The Post-Freeland Cases
Freeland was the first case to hold that Article I,
section 20, requires, in addition to the use of permissible
“discriminatory motive” or “other arbitrary classification” or that he “was singled
out, not dealt with on substantially the ‘same terms’ as others similarly situated
or was the victim of a ‘haphazardly’ arrived at ad hoc decision.” Freeland, 295 Or at
394-96 (Jones, J., dissenting).
88 State v. Savastano
criteria, evidence of a policy that standardizes an agency’s
exercise of its discretion. Since Freeland, this court has
reiterated the latter requirement, but it has never found
that any government agency has violated it. See, e.g., City
of Salem v. Bruner, 299 Or 262, 270-71, 702 P2d 70 (1985).15
Indeed, no decision since Freeland—other than the Court of
Appeals decision in this case—has held that government
action in providing a burden or a benefit to a particular
individual violated Article I, section 20, because it was made
in a “standardless, ad hoc fashion, without any ‘coherent,
systematic policy.’ ” Savastano, 243 Or App at 588 (stating
that test and quoting Freeland). Moreover, this court’s post-
Freeland decisions involving prosecutorial discretion and
Article I, section 20, are not always easy to reconcile with the
reasoning in Freeland. We turn to a consideration of several
of those cases.
In State v. Farrar, 309 Or 132, 786 P2d 161, cert den,
498 U.S. 879 (1990), a death penalty case, the defendant
argued that the district attorney’s office had refused to enter
into plea negotiations with him on the same terms that it had
entered into plea negotiations with other persons charged
with aggravated murder. 309 Or at 138-42. The defendant
observed that, in three aggravated murder cases, the dis-
trict attorney had considered a shifting mix of factors, that
not all the same factors applied in each case, and that
even when the same factors applied the district attorney
had sometimes given them different weight. See id. at 139-
40.16 This court rejected the defendant’s Article I, section
15
In Bruner, for example, the court reiterated the reasoning in Freeland and
stated that a government decision to charge a defendant in one, rather than the
other, of two different courts, each of which had a different appeals procedure,
“present[ed] a choice of ‘privileges’ which must be made by defensible criteria, that
is, by criteria which ensure consistency in treatment.” 299 Or at 270. The court’s
holding was more limited, however. The defendant in Bruner had argued only
that an officer’s discretion to charge him into municipal or circuit court, with the
resulting selection of different routes of appellate review, was sufficient by itself
to establish a violation of Article I, section 20, and the court rested its holding on
the more limited ground that, as in Clark, the existence of discretion to proceed
in one of two ways, standing alone, did not give rise to an equal privileges or
immunities violation. Id. at 271. Not only was the preceding discussion of Freeland
unnecessary to the court’s holding and thus dicta, but it also imposed a requirement
of “ensur[ing] consistency” in addition to “defensible criteria,” id. at 270, which was
absent in Clark.
16
Among other things, the district attorney considered the defendant’s age,
prior record, mitigating evidence, and the strength of the proof in deciding whether
Cite as 354 Or 64 (2013) 89
20, challenge, reasoning that in each case the factors that
the district attorney considered “had a rational relation
to the prosecutorial decision” whether to engage in plea
negotiations and that the district attorney’s decision in each
case “was reasonable under the circumstances.” Id. at 141.
The court concluded that the district attorney had offered
a “clear, rational, consistent, and consequently sufficient
justification for treating [the] defendant differently from [the
other two persons charged with aggravated murder].” Id.
Implicit in Farrar was the recognition that many
decisions that prosecutors and other executive officials make
involve multiple variables. Not all decisions involve the same
variables, the variables in each case may cut in different
directions, and the priority or weight that each variable
deserves may differ from one case to the next. Although a
prosecutor’s different treatment of similarly situated persons
may not be “merely ‘haphazard,’ i.e., without any attempt
to strive for consistency among similar cases,” id. at 140, it
need only be “rational and consistent.” Id. at 141. Instead of
the “coherent, systematic policy” test of Freeland, this court
in Farrar applied a less rigorous standard that focused on
rational, reasonable, and consistent decisions.
A second decision, State v. Buchholz, 309 Or 442, 788
P2d 998 (1990), looks in the same direction. In that case, the
prosecutor did not offer a plea agreement to the defendant
but did offer a plea agreement to a codefendant. 309 Or at
446-47. In response to the defendant’s argument that the
district attorney’s office lacked a coherent, systematic policy
for offering plea bargains, this court noted that ORS 135.415
specified the criteria for offering a plea bargain and reasoned
that those statutory criteria provided “consistent standards
representing a coherent, systematic policy” regarding plea
agreements. Id. at 445, 447 (citing ORS 135.415).
Similarly to Farrar, the court’s reasoning in Buchholz
is not easy to square with Freeland. The statute on which the
court relied in Buchholz listed multiple criteria that “may
to enter into plea negotiations. Farrar, 309 Or at 139. In concluding that those
considerations were permissible, the court reasoned that the “district attorney’s
actions were not based on class discrimination, animus to [the] defendant or his
attorney, or on concerns collateral to fair prosecution of [the] defendant for aggra-
vated murder.” Id. at 140-41.
90 State v. Savastano
be take[n] into account,” permitting a prosecutor to apply
one criterion in one case and another criterion in a differ-
ent case, which could lead to different results being reached
in similar cases. Beyond that, the statute did not limit the
criteria (or “considerations,” as the statute called them) that
a prosecutor could take into account; it explicitly recog-
nized that prosecutors could take into account additional,
unspecified considerations in deciding whether to offer a
plea bargain. See ORS 135.415 (providing that a prosecutor
“may take into account, but is not limited to, any of the
following [six] considerations”); cf. Schmidt v. Mt. Angel
Abbey, 347 Or 389, 409, 223 P3d 399 (2009) (Walters, J.,
concurring) (explaining that “the phrase ‘including but not
limited to,’ followed by a list of examples, [often] conveys an
intent to illustrate or to broaden, rather than to limit the
meaning of a general term”). Finally, the statute provided no
guidance as to how a prosecutor should weigh or prioritize
those considerations when the decision whether to offer a plea
agreement turned on multiple conflicting considerations.
If a coherent, systematic policy that guides agency
decision making is a constitutional requirement, the nonex-
clusive list of statutory considerations in ORS 135.415 did
little to advance it. Despite those problems, the court in Buchholz
cited Freeland and held that the existence of those statu-
tory considerations, without more, represented a coherent,
systematic policy that satisfied Article I, section 20.17 It is dif-
ficult to reconcile Buchholz with the reasoning in Freeland,
which envisioned either prior rulemaking that standardized
prosecutorial discretion or the ability to identify a consistent
practice retrospectively. See Freeland, 295 Or at 378 (noting
that either “internal rules or guidelines” or “consistency in
practice” could satisfy Article I, section 20, requirements). In
our view, Buchholz is best understood as standing for the prop-
osition that Article I, section 20, requires that the consider-
ations that a prosecutor takes into account in an individual
17
The defendant in Buchholz did not argue that the standards in ORS 135.415,
standing alone, were not consistent standards representing a coherent, systematic
policy, and instead challenged the application of those standards. 309 Or at 447.
Nonetheless, the court stated that the prosecutor’s application of one of the criteria
in the statute to the two codefendants, without further explanation regarding his
practice in other cases, was sufficient to satisfy the requirement in Freeland of a
“coherent, systematic policy.” Id.
Cite as 354 Or 64 (2013) 91
case have “a rational relation to the *  * decision” and that
*
the decision in each case be “reasonable under the circum-
stances.” See Farrar, 309 Or at 141.
This court again rejected a claim that a prosecutor
improperly had refused to consider a plea offer in another
death penalty case, State v. McDonnell, 313 Or 478, 492, 837
P2d 941 (1992). The prosecutor testified that because the
facts of the defendant’s case fit one of the aggravated murder
categories and were “strong,” he charged the defendant with
aggravated murder and thereafter refused to plea bargain.
Id. at 490. He also analyzed the case in terms of the nonex-
clusive factors identified in ORS 135.415, which were held in
Buchholz to meet the requirements of Article I, section 20.
Id. at 492. The parties disputed whether the prosecutor’s
conduct demonstrated a “systematic policy” concerning plea
bargaining aggravated murder cases. This court concluded
that “the decision not to plea bargain in aggravated murder
cases was based on rational and proper grounds *  *.” *
Id. at 491. Although the court quoted the “coherent, sys-
tematic policy” language from Freeland and found that the
prosecutor’s conduct met that standard, it also quoted and
followed the arguably looser standard of Farrar and Buchholz,
which upheld decisions on plea bargains that were consistent
with ORS 135.415 and were “reasonable” and “rational.” See
McDonnell, 313 Or at 490-92 (citing and quoting Farrar and
Buchholz).
E.  The State’s Arguments Regarding Article I, Section 20
With that background in mind, we turn to the state’s
argument that Article I, section 20, applies only to the leg-
islature and only to economic benefits. That argument sweeps
too broadly. For over 100 years, this court has recognized
that Article I, section 20, applies not only to the legislature
but also to other branches of government. See, e.g., Clark,
291 Or at 239 (detailing application of Article I, section 20,
to “administration of laws under delegated authority” and
prosecutorial discretion); White, 44 Or at 192 (“[T]he board
of commissioners for licensing sailors’ boarding houses can
exercise no greater power than was possessed by the legis-
lative assembly[.]”). Indeed, in State v. Stevens, 311 Or 119,
125, 806 P2d 92 (1991), the court assumed that Article I,
92 State v. Savastano
section 20, applies to the judicial branch, but held that no vio-
lation had been shown.
In applying Article I, section 20, moreover, this court
has similarly recognized that “privileges, or immunities,”
are not limited to economic benefits. See, e.g., Clark, 291
Or at 241 (“There is no question that the opportunity of a
preliminary hearing is a ‘privilege’ within the meaning of
the constitutional guarantee[.]”); State v. Reynolds, 289 Or
533, 541, 614 P2d 1158 (1980) (applying Article I, section
20, to prosecutor’s charging decision). The state is correct
that many early privileges or immunities cases involved
monopolies or other economic benefits, but nothing in the
words of the provision or the historical definitions of those
words indicates that they do not also apply to noneconomic
privileges or immunities conferred by the government.
We accordingly disagree with the state’s argument
that Article I, section 20, places no limitation on the decision
that the prosecutor made. We conclude, as the court did in
White, that Article I, section 20, places the same limitation
on other branches of government that it places on the legis-
lature: An executive agency cannot use a criterion in acting
in an individual case that the legislature cannot use in
enacting a law. See White, 44 Or at 192. That same limitation
applies even if no economic benefit is involved. See Clark,
291 Or at 241.
We recognize, however, as the state argues, that
Freeland goes beyond White and Clark and imposes the
additional requirement of a consistently applied “coherent,
systematic policy” to guide every instance of agency decision
making. The parties’ competing positions require us to
decide whether, in grounding that requirement in Article I,
section 20, the decision in Freeland went beyond the text of
Article I, section 20, its history, and the cases interpreting
it.
In considering that question, we note that Freeland
stands alone. No case that preceded Freeland announced the
requirement of a “coherent, systematic policy” that Freeland
drew from Article I, section 20. Similarly, although a number
Cite as 354 Or 64 (2013) 93
of cases coming after Freeland have cited that standard,
no case decided after Freeland has held that an executive
agency (or the legislature or judiciary) violated the require-
ment that the court recognized in Freeland, and the rea-
soning in those cases is sometimes difficult to square with
Freeland’s. As explained above, Farrar and Buchholz did
not require a “coherent, systematic policy,” as Freeland did,
for the court to conclude that an official’s decision to treat
one person differently from another in an individual case
was “defensible.” See Clark, 291 Or at 246. Similarly, in
McDonnell, the court cited the “coherent, systematic policy”
standard, but also held that the prosecutor’s refusal to plea
bargain was consistent with Article I, section 20, because
it was “based on rational and proper grounds” and was
consistent with nonexclusive factors set out in statute. 313
Or at 491-92.
Not only does Freeland appear to go further, by
requiring a coherent and systematic policy, than the cases
that both preceded and followed it, but the support it
identified for the conclusion that it reached is not immune
from question. As noted, the court recognized in Freeland
that the issue before it required “further analysis” than
the court undertook in Clark, but it appeared to treat the
holding that it reached as if it were a foregone conclusion
from the decision in Clark. The holding in Clark is narrow,
however. The court neither considered nor decided in Clark
the issue that it later resolved in Freeland, and it is difficult
to find support in Clark’s holding for the conclusion that
Freeland reached. Moreover, the standards that the court
announced in Clark can (and we think should) be read con-
sistently with this court’s earlier decisions: A prosecutor may
not use criteria in administering charging procedures that
the legislature could not use in enacting laws. As the court
explained in Clark, in making an individual decision, a prose-
cutor will comply with Article I, section 20, “as long as no
discriminatory practice or illegitimate motive is shown and
the use of discretion has a defensible explanation.” 291 Or
at 246.
We acknowledge that some of the statements in
Clark—and in Edmonson, which relied upon and paraphrased
94 State v. Savastano
Clark—can be read more broadly, and that is how the court
interpreted them in Freeland. However, in doing so, the
court in Freeland read more into those statements than was
warranted by the issue that Clark resolved, and the court’s
reading of those statements went beyond the text, history,
and other cases interpreting Article I, section 20. Freeland
adopted a broad prophylactic rule that might well further
the rights protected by Article I, section 20, and protect
against their violation. In our view, however, that rule is not
required by Article I, section 20.
Finally, we note that, in explaining why requiring
consistency in agency decision making was compatible with
prosecutorial discretion, the court in Freeland discussed at
some length administrative law decisions and quoted from an
article reasoning that administrative law principles should
be applied to prosecutorial decision making. See Freeland,
295 Or at 376-78. To the extent that the court viewed Article I,
section 20, as requiring the consistent, systematic policies
characteristic of administrative regulatory schemes, we think
it went farther than the text of that provision, its history, and
the cases interpreting it warrant. We do not disagree with
some of the statements in Freeland (and the commentators
and administrative law principles discussed there) about the
value of policies to guide prosecutorial discretion and limit
the potential for discriminatory enforcement or different
treatment of similarly situated persons. And the articles,
studies, and guidelines cited in Freeland provide models for
improving the prosecutorial function and the administration
of justice that might profitably be adopted by policy or stat-
ute. For the reasons discussed, however, we conclude that
the failure to adopt or adhere to such policies does not violate
Article I, section 20.
We also reject the related notion in Freeland that a
defendant can satisfy his or her initial burden in bringing
an individual-based claim under Article I, section 20, merely
by showing that the government lacks a coherent, systematic
policy. Without any showing by the defendant that he was
denied a privilege or immunity that was granted to a simi-
larly situated person, the court required the state to show a
“coherent, systematic policy” and the absence of “haphazard”
Cite as 354 Or 64 (2013) 95
administration.18 Those requirements, the court said, would
“assure[  equal treatment and prevent inconsistent appli-
]”
cation of the policy that “might” otherwise occur. Freeland,
295 Or at 375, 381. Freeland, in effect, relieved the defendant
of the burden of demonstrating a prima facie violation of
Article I, section 20, by showing that he or she was treated
differently than a similarly situation person, and instead
required the state to prove that it had adopted and uniformly
applied policies that would prevent such violations. Cf. Wayne
R. LaFave et al., 4 Criminal Procedure § 13.4(b), 172 (3d ed
2007) (defendant bears burden of demonstrating selective or
discriminatory enforcement); see also Freeland, 295 Or at
397 (Jones, J., dissenting) (defendant bears burden of making
prima facie showing of differential treatment). Freeland did
not identify any constitutional or statutory basis for imposing
that obligation on the state—in the absence of any showing
by the defendant of discrimination or the use of improper
criteria—and we are aware of none.
This court explained in Stranahan v. Fred Meyer,
Inc., 331 Or 38, 53, 11 P3d 228 (2000), that
“[t]he question [whether to overrule a prior constitutional
decision] is one of stare decisis, a doctrine that attempts
to balance two competing considerations. On one hand is
the undeniable importance of stability in legal rules and
decisions. That consideration applies with particular force
in the arena of constitutional rights and responsibilities,
because the Oregon Constitution is the fundamental docu-
ment of this state and, as such, should be stable and reliable.
On the other hand, the law has a similarly important need
to be able to correct past errors. This court is the body with
the ultimate responsibility for construing our constitution,
and, if we err, no other reviewing body can remedy that
error. See Hungerford v. Portland Sanitarium, 235 Or 412,
415, 384 P2d 1009 (1963) (‘[t]he pull of stare decisis is
strong, but it is not inexorable’).”
We do not lightly decide to overrule an earlier constitutional
decision. See Farmers Ins. Co. v. Mowry, 350 Or 686, 693-94,
261 P3d 1 (2011) (reviewing the considerations that will
18
The dissent in Freeland also made this point, noting that it had found no
other judicial decision that placed the burden on prosecutors to make such a show-
ing. 295 Or at 394-95 (Jones, J., dissenting).
96 State v. Savastano
warrant overruling an earlier constitutional precedent). In
our view, however, application of the court’s methodology in
Priest for interpreting constitutional provisions persuades
us that Freeland went beyond the cases that preceded it,
and Freeland’s holding finds little support in the text or
history of Article I, section 20. Moreover, the cases that
have followed Freeland have eroded its precedential value
and effectively returned to the more limited and historically
grounded principle stated in Clark.
In these circumstances, we conclude that it is appro-
priate to overrule the decision in Freeland and reaffirm the
decision in Clark. To bring an individual-based claim under
Article I, section 20, a defendant must initially show that the
government “in fact denied defendant individually * * * [an]
equal privilege * * * with other citizens of the state similarly
situated.” Clark, 291 Or at 243. An agency or official’s decision
will comply with Article I, section 20, “as long as no dis-
criminatory practice or illegitimate motive is shown and the
use of discretion has a defensible explanation” in the indi-
vidual case. Id. at 246. An executive official’s decision will
be “defensible” when there is a rational explanation for
the differential treatment that is reasonably related to the
official’s task or to the person’s individual situation. See id.
at 239, 246.
To summarize, the Priest analysis—and particu-
larly this court’s long history of cases interpreting Article I,
section 20—confirms the conclusion that that provision applies
to government actions generally, including prosecutors mak-
ing charging decisions. Article I, section 20, does not require
consistent adherence to a set of standards or a coherent, sys-
tematic policy, as defendant contends; that provision does,
however, require government to treat similarly situated
people the same. A government decision-maker will be in
compliance with Article I, section 20, as long as there is a
rational explanation for the differential treatment that is
reasonably related to his or her official task or to the person’s
individual situation.
IV.  APPLICATION OF ARTICLE I, SECTION 20
We return to the facts of this case, viewed in light of
this court’s interpretation of Article I, section 20, in Clark.
Cite as 354 Or 64 (2013) 97
The prosecutor aggregated the theft transactions into 16
counts of theft, organizing the charges by month to provide
clarity for the jury. Defendant does not challenge the prose-
cutor’s aggregation of the theft transactions on grounds that
the prosecutor engaged in a discriminatory practice or based
his decision on impermissible criteria, such as race or gender.
Nor does defendant challenge the prosecutor’s decision
because the prosecutor in fact treated defendant differently
from a similarly situated individual or inconsistently applied
a policy to defendant. Instead, defendant asserts that the
prosecutor acted arbitrarily when he aggregated the theft
transactions by month, because there was no policy for aggre-
gating theft transactions.
When a defendant does not demonstrate differential
treatment, but, as here, claims only that the prosecutor acted
arbitrarily in a manner that denied the defendant a privilege
or immunity, the prosecutor violates the defendant’s Article I,
section 20, rights if the prosecutor lacks a rational basis for
his or her decision. On this record, defendant’s assertion that
the prosecutor’s decision was arbitrary because it was not
based on a coherent, systematic policy for aggregating theft
transactions fails under Clark and the cases that preceded
it. Like the prosecutor’s decision to grant immunity to one
potential codefendant but not to another in Clark, and the
similar decisions in Farrar, Buchholz, and McDonnell, the
prosecutor here did have a rational basis for his decision. As
the prosecutor explained, he aggregated the theft trans-
actions by month for purposes of jury understanding of the
case. That was a reasonable and permissible basis for his
action and, in this case, satisfies the requirements of Article I,
section 20.
The decision of the Court of Appeals is reversed.
The judgment of the circuit court is affirmed.