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The appeal of a Clackamas County Circuit Court decision to block the reforms could head straight to the Oregon Supreme Court because of legislation passed earlier this year.

PARIS ACHEN/CAPITAL BUREAU - Oregon Supreme Court building in SalemSALEM — The state's appeal of a Clackamas County Circuit Court decision to block sentencing reforms passed in 2017 could soon be headed to the Oregon Supreme Court.

Clackamas County District Attorney John Foote and two crime victims from Oregon City and Sandy sued the state in November to stop enforcement of House Bill 3078.

The bill reduced sentences for identity theft and first-degree theft and was intended to help reduce the number of women sent to prison and avoid the expense of opening a second state women's prison.

A panel of Clackamas Circuit Court judges ruled Feb. 22 that the legislation was unconstitutional because it passed the state Legislature with only a simple majority vote.

The mandatory sentences for those crimes were approved by voters in 2008 via Measure 57. The Oregon Constitution requires at least a two-thirds majority vote by each chamber of the Legislative Assembly to change the voter-approved sentences, the court ruled.

The Oregon Department of Justice filed a notice of its intent to appeal the ruling March 15.

During the 2018 legislative session, lawmakers passed another bill, Senate Bill 1543, that was intended to hasten the case to the Oregon Supreme Court.

Lawmakers said they wanted a quick ruling on the case so they could ensure sentencing uniformity between counties and prepare for any increase or decrease in the prison population as a result of the court's decision.

Foote and the other plaintiffs filed a motion March 16 in the Court of Appeals to certify the case to the Oregon Supreme Court.

"(T)he judgment is of concern to a great many people — not just people charged with identity theft and theft I, but also their lawyers and prosecutors and the judges hearing their cases," wrote Thomas Christ, the plaintiffs' attorney. "Taxpayers, too, are concerned, because the sentencing reductions in (House Bill) 3078 were intended to reduce incarcerations and thus save the state from the cost of building a new women's prison."

The Department of Justice "does not object to that request because the challenges to the constitutionality of (House Bill) 3078 have created a situation where criminal sentences may be different from county to county," said DOJ spokesman Kristina Edmunson.

A defendant in Clackamas County and other counties may receive a longer sentence than they likely would in counties that have not found the legislation to be unconstitutional, Edmunson said.

"This creates a system of justice where the duration of a criminal sentence will depend not on the severity of the criminal conduct but on the judge's perception of the constitutionality of the underlying statute," she said. "This exceptional situation warrants immediate review by our highest court to avoid the unfairness of any uncertainty around the appropriate sentence."

Senate Bill 1543 provides that the Supreme Court has jurisdiction to decide in any civil appeal filed between Jan. 1 and April 1 whether the sentencing reforms in House Bill 3078 violate any provision of the Oregon Constitution. The court "shall, to the extent practicable, expedite its disposition of" such appeals.

"This case meets that description. In fact, it's the only one that does, and probably ever will," Christ wrote.

Gov. Kate Brown has yet to the sign the bill. If she doesn't sign or veto the legislation by April 13, it will automatically become law.

Paris Achen
Portland Tribune Capital Bureau
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