State v. Savastano

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 US 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 US 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 US 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 US 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 US 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.