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Small group of legislators questioning civil lawsuit to challenge the constitutionality of HB 3078

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TO: Willamette Week; Reporter Katie Shepherd    
FROM: John S. Foote, District Attorney for Clackamas County
DATE: June 10th, 2019
RE: Small group of legislators questioning civil lawsuit to challenge the constitutionality of HB 3078                  

There is a small group of Oregon Legislators who are challenging how we responded to their efforts to void voter approved sentences for serious repeat felony property offenders.  Specifically, they are attempting to insinuate that there was something improper about a $2,000 payment towards legal fees that this office made, at my direction, to protect the ruling by a three judge panel in Clackamas County. The judges ruled that these same legislators and others had acted improperly and unconstitutionally when they voided those voter approved sentences. This statement is a response to those questions.
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To fully understand why I made the decision to authorize the payment, a longer explanation is necessary.

In 2008, Measure 57 was overwhelmingly (61%) passed by the voters.  It set stronger, but not mandatory sentences for repeat felony property offenders.  According to Article IV, Sec. 33 of the Oregon Constitution, it could not be changed without at least a 2/3 majority in both houses of the legislature.  In 2017, the Oregon legislature decided to amend a portion of Measure 57 with less than a 2/3 majority with no public debate or discussion.  This decision was made outside of the public hearings on the bill.  I attended those hearings and the only time I actually saw even a mention of the subject of whether a 2/3 vote was necessary at a hearing was at the very end of the last public hearing in front of the Rules Committee at which Representative Greg Barreto (R) briefly asked Chair and majority Leader Rep. Jennifer Williamson (D) if a 2/3 vote was required and the answer was, “yes.”  The legislature proceeded to pass HB 3078 with less than a 2/3 majority and the legislature convened.

In November 2018, two crime victims, Mary Elledge and Deborah Mapes-Stice, and I brought a lawsuit to challenge this action.  No public money was used to file or litigate this lawsuit at the trial level.  We retained a respected and experienced civil lawyer who specializes in constitutional issues, Mr. Christ.  The Clackamas County Circuit Court designed a special three judge panel to hear the case.  After extensive briefing and argument the Clackamas County panel ruled unanimously that our position was correct and voided the legislature’s actions.  A copy of the legal judgement and opinion is attached.  It should also be noted that subsequent to their ruling the same issue was considered by trial judges in 11 other Oregon counties, and in every one of those cases, our position prevailed.  Nevertheless, the Oregon Attorney General and the Oregon Department of Justice refused to accept these rulings and defend them on appeal.  Likewise, they refused to allow us to file our own appeal or to recognize they had a legitimate legal conflict of interest because they represented two clients in the same case with opposing positions.  As a result of their actions, we were forced to retain Mr. Christ for the appeals.  Otherwise, district attorneys and crime victims would have had no voice on the appeal.  A copy of an exchange of emails between Oregon Solicitor General Ben Gutman to our Chief Deputy Chris Owen is attached.  It accurately reflects their position.

I, as an independently elected District Attorney for Clackamas County, authorized $2,000 from our county budget to defray some of the costs of handling the appeal.  That expense fell under our general budget line item called “Trial Expense.”  I made this decision because it was in the public interest to defend the decisions of the Clackamas County Circuit Court as well as the legal position of this office.  I have no regret doing so.

We believe the Oregon Department of Justice had a legal and ethical conflict of interest in this case, and should have recognized it and appointed independent counsel to represent us on appeal.  That ethical obligation is required by the cannons of the Oregon State Bar.  Their refusal forced us to retain private counsel to represent our interests on appeal.

We believe our actions served our communities because it forced the entire debate about the constitutionality of HB 3078 (and future legislation as well) out into the open so the public could judge for themselves.  Prior to our actions, all of the decisions of the Oregon legislature on this issue were made behind closed doors, without public scrutiny.  Thanks to our actions, as unpopular as they may be for certain legislators and leadership in the Oregon Department of Justice, we have shined a light on this issue and obtained clear legal direction from our appellate courts.  Despite the fact that we disagree with the appellate court’s ultimate decision, we respect their authority to make the final call as an independent branch of government and as the founders of our state intended.