STATE COURT THROWS OUT CRIME MEASURE: THE RULING

Justices Say Measure 40 Has Too Many Amendments

The Oregon Supreme Court on Thursday used a narrow legal point to throw out
Measure 40, a sweeping initiative backed by crime victims' groups.

The court unanimously ruled that Measure 40, which voters approved in
November 1996, violated the state constitution because it contained more
than one constitutional amendment. The court did not address the
constitutionality of specific provisions, which include allowing
convictions in murder cases on an 11-1 jury vote and making it more
difficult to exclude evidence.

And because the 1997 Legislature passed a bill that enacted most of Measure
40 as state statute, many provisions could remain. It could take future
rulings by the court on individual provisions to sort out their legality.

The ruling is not expected to overturn many convictions. Both sides in the
debate said the significance of the ruling is the effect on the initiative
system.

"The practice lately has been to draft an initiative that's a Christmas
wish list for some special-interest group and put everything they possibly
can into it that they can't get passed by the Legislature," said Thomas
Christ, who argued the case for the American Civil Liberties Union.

Opponents said the measure was not about crime victims' rights but about
making it easier to convict defendants. Voters should be able to consider
complex provisions separately, they said.

But supporters of the measure said its single purpose was to make crime
victims' rights equal to the rights of criminal defendants. They said the
court used a technicality to make it more difficult to pass initiatives.

"We're going to have juries deprived of hearing relevant evidence because
those people in Salem want to keep that evidence from them based on their
desire to enforce esoteric constitutional principles they've made up," said
Norm Frink, a Multnomah County chief deputy district attorney. "I'm afraid
the court has reached critical mass as far as politicizing itself."

The ACLU, in a case that originated in Marion County, presented three
arguments to the court.

The court did not agree with the first two, that the initiative contained
more than one subject or that it was such a substantial change to the
constitution that it represented a revision, which must be referred to
voters by the Legislature.

Instead, in Chief Justice Wallace P. Carson Jr.'s 69-page opinion, the
court used the multiple-amendment argument, which no lower court had used
to strike down the measure.

Measure not heavily used

Both sides agree that few cases relied so heavily on the measure that they
will have to be retried or thrown out.

"I don't think there will be a lot because, from the beginning, prosecutors
and judges had grave doubts about the validity of Measure 40 and, in a lot
of cases, stayed away from it," said Paul Levy, a defense lawyer with
Metropolitan Public Defenders in Portland.

In Multnomah County, some drug cases could be overturned because evidence
from searches might be ruled inadmissible, Frink said.

Peter Cogswell, spokesman for Attorney General Hardy Myers, said the
court's vote clearly kills two provisions of Senate Bill 936, which enacted
the measure: The 11-1 convictions in murder cases and restrictions on
pretrial release of defendants. However, no one has been convicted of
murder in Oregon on an 11-1 vote, and many circuit courts rejected the
pretrial custody section.

Cogswell said many provisions will remain in effect, such as requiring
district attorneys to consult victims about plea bargains, allowing
evidence of previous arrests into trials and giving victims the right to
restitution.

But Levy said allowing evidence of previous arrests might be found
unconstitutional. Other provisions, such as requiring jurors in criminal
cases to be registered voters and giving prosecutors the right to demand a
jury trial instead of a bench trial also might be unconstitutional.

"There's still a lot of open questions and doubt what remains viable in
(Senate Bill) 936, and it's going to be the subject of a lot of
litigation," Levy said.

Search law in question

One other issue that must be resolved is how Thursday's ruling affects
another law passed by the 1997 Legislature that gives police greater search
powers, such as asking about drugs during stops for traffic violations.
That law was passed with the assumption that Measure 40 amended the state
constitution, Cogswell said.

Steve Doell, a Measure 40 supporter and president of Crime Victims United,
called the decision an "unprincipled exercise of raw political power" by
the Supreme Court.

"It's a sad day for people who have been victims of crimes," Doell said.

Doell said his group has three options. The most attractive is to have a
special session of the Legislature split the measure into two or three
constitutional amendments and send them to voters in November.

Doell said that if the issue is not taken up during a special session, he
would ask the 1999 Legislature to send measures to voters. The
least-attractive option is to start from scratch, refile the initiatives
and collect signatures on new measures. That would mean voters might not
see the measures until November 2000, Doell said.

Even though many provisions are state law, supporters say it is important
to make them part of the constitution to protect them from changes by
lawmakers.

Checked-by: Richard Lake