Citizen Initiative Review Deeply Flawed

BY Oregon Anti-Crime Alliance

The Oregon Anti-Crime Alliance was asked, on short notice, to participate in the Citizen Initiative Review of Ballot Measure 73. It was represented by members of Healthy Democracy for Oregon, the organization running the process, that the process would be fair. Unfortunately, it became clear in the process that the panel of 24 citizens, who were required to impartially decide the issues and write a voters’ pamphlet statement, had not been screened for fairness and impartiality regarding Measure 73.

The official voters’ pamphlet explanatory statement begins with the sentence, “Ballot Measure 73 sets mandatory minimum sentences for certain repeat sex offenders and certain repeat intoxicated drivers.” An experienced attorney selected for the panel of 24 citizens was obviously strongly opposed to mandatory minimum sentences from the outset. Furthermore, panelists had the right to ask questions of so called “background witnesses” and the experienced attorney skillfully pressed his opposition to mandatory minimum sentences throughout his questioning. This was troubling and was made worse by the fact that advocates for or against Measure 73 were not allowed to ask questions of the “background witnesses.” There was no counterbalance questioning allowed. In short, the failure to screen panelists for fairness and impartiality regarding Measure 73 amounted to the equivalent of the opposition to Measure 73 having one of their own attorneys on the panel.
Fortunately, this type of bias in a decision making process would never happen in a court of law where the process has protections to be sure that jurors are fair and impartial.

There are other significant problems with the Citizen Initiative Review process.

1. Unbalanced background witnesses.

• 7 witnesses called-three required to be neutral as they were government employees-3 opposed to mandatory minimum sentences and one in favor of mandatory minimum sentences.

• Although advocates for and against the measure were allowed to submit names of suggested witnesses, the ultimate authority to put names on the list was reserved to Healthy Democracy for Oregon. The Oregon Anti-Crime Alliance suggested all Sheriffs and District Attorneys should be on the list because these officials are the law officers responsible for public safety in our communities and for implementing Measure 73. NO sheriffs were called as background witnesses and only one out of 36 district attorneys was called as a background witness. Although he had lots to say the district attorney was limited to twenty minutes and other background witnesses were given more time.

2. Search for information restricted by poor time allocation.

• Breaks and lunch……………………………………….about 10 hours
• Introductions, process, explanations of rules, daily wrap ups, and evaluation of the process……about 12 hours
• Listening to witnesses and Measure advocates………about 8 hours
Group process-decision making and statement writing…about 10 hours

3. Accuracy of information questionable at times

• Witnesses were not under oath
• Questionable information examples: One advocate witness was referred to as a “district attorney” when in fact he was never a district attorney but was rather a deputy district attorney who had been laid off. Example: One advocate said it was her belief that a law referred to as Measure 11 had never been amended by the legislature because it takes a 2/3s vote. It may have been her belief but it sure wasn’t true. In truth it had been amended at least twice by the legislature.

• No advocate questioning of witnesses allowed to bring out the whole truth.
Doug Harcleroad, the representative of the Oregon Anti-Crime Alliance who participated in the Citizen Initiative Review process, is a highly-respected member of the legal and law enforcement community. He is a former long-time district attorney, a former adjunct professor of law at the University of Oregon School of law, a past president of the Oregon District Attorneys Association, a past president of the Eugene Rotary Club, a past president of the Oregon Trail Council, Boy scouts of America and a past president of the Child Advocacy Center of Lane County called Kids First. He is very disappointed and frustrated with the process set up by Healthy Democracy because it falls far short of the truth-finding process he is accustomed to in the judicial system of Oregon.

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Posted by at 03:21 | Posted in Measure 37 | 86 Comments |Email This Post Email This Post |Print This Post Print This Post
  • Wayne Brady

    The two founders of this organization, Tyrone Reitman and Elliot Shuford are both Democrats. The board members that I could check are Democrats, Others, or Decline to State. In addition, those I could check come from universities or government.

    I think this gives one some concern about the objectivity of this organization. The behavior described by Kevin Mannix certainly is consistent with what I would have expected.

    We have to inform the public about this so that the recommendations of this organization are not given much weight.

  • Marvin McConoughey

    Sounds a bit like the Oregon League of Women, which self-proclaims itself to be politically neutral, but whose actions over many years tell a different story.

  • life is unfair

    Deal with it.

  • Rupert in Springfield

    Frankly the entire voters pamphlet thing has gotten a little out of hand.

    I actually question the value of having citizens vote on issues they may have zero knowledge about and may have only heard of when they got the pamphlet. Their self education on a measure or a candidate may consist of nothing but what they read in the pamphlet, which is largely just a bunch of paid statements.

    Id prefer no voters pamphlet at all, and no listing of initiatives or even candidates on the ballot. Just a blank card with a three long columns of boxes.

    If you want to vote yes on Measure 99 there would be three boxes, one to write in the measure number, one to check yes, one to check no.

    If you want to vote for a candidate, same thing. One box for name, one for yes, one for no.

    If you do not go through the effort to know what candidates are running, or know the ballot issues enough to know their number, oh well.

    • Ron Marquez

      Whether desired or not, the effect would be to significantly (50% or more ?) reduce voter turnout. Who would that benefit ? Probably mostly the Dems as teacher and public employee unions would make sure members were well informed on which measures should be voted on and whether a yes or no vote was in their best interest.

      A voters pamphlet that just listed the measures, measure explanations, and candidates without the paid statements and candidate puffery would be of more use to me.

      • valley p

        So the solution to ignorance is less information? Amazing.

        • Ron Marquez

          valley,… you came up with that from what I said is unknown to me unless you’re calling me ignorant. I hope not as name calling is not something I usually associate with you.

          • valley p

            The response was meant for Rupert, and no I was not calling anyone names. However, your suggestion seems to fall into the same category as his by calling for less information being made available.

            By the way, lower turnout almost always works in the favor of Republicans, since poor people tend to turn out less (and vote Democratic) and the upper middle class tends to turn out high and votes Republican. That is why Democrats are usually trying the register voters and get them out and Republicans are usually arguing against any policy (i.e. motor voter) that makes it easier to vote.

          • Ron Marquez

            valley,… original post did note that the voter’s pamphlet I described “would be of more use to me”. I purposely did not include the entire voting public as the measures themselves and, sometimes the explanations, tend to induce a sleep bordering on comatose.

            Can’t dispute your analysis of which party voter turnout favors as I don’t have statistics to back up my opinion that it’s Dems that benefit. For this, we’ll agree to disagree.

  • Bill Sizemore

    I went through this same process with this same organization with in 2008 with Measure 58, which was the English Immersion measure. I thought the process was reasonably fair, though I was quite aware that those who organized the event and orchestrated it were from the political left.

    I do not believe I was railroaded by the process, but for several reasons I am not persuaded that something like this should be in the voters pamphlet. First, I believe the process was initiated because of a basic belief on the political left that voters are too ignorant to figure out a handful of ballot measures on their own. (Never mind the fact that legislators are of average intelligence and yet deal with 3,000 to 4,000 bills per session and pass 800 to 1,200 of them, reading almost none of them.) These citizen panels are supposed to do the voters thinking for them after more prolonged and in depth examination of the details of the measures than the average voter would undergo.

    Secondly, those citizens accepting the job of examining a measure for the less studious voters are naturally going to be inclined to look hard for any flaws in the measures and point those out to voters so a measure does not slip by with a flaw in it, even if the measure is overall a worthwhile change in public policy. This natural tendency to look for perceived or real flaws makes the panels strongly inclined to recommend a “No” vote over a “Yes” vote, because to recommend a “Yes” vote for a measure with even a minor flaw would be against the nature of a group making recommendations to the body politic.

    Probably the largest problem with the approach of this panel is that the “average” voter would never have the time to participate in such a panel, which makes the group somewhat self selecting, notwithstanding all the serious efforts the organizers have made to make the panel fair. The panel could only be truly representative of the entire electorate if the selections to the panel were made by a lottery of the entire roll of registered voters and everyone selected was required to participate, which of course we cannot do.

    Serving on such a panel like this takes a lot of time and sacrifice and most people would not make that investment. Those who do should be thanked, but the fact that they are willing to do this makes them far less normal than the citizen review process suggests.

    There is no reason for this panel’s findings to be published in the voters pamphlet, except the fact that the legislature thinks voters are not competent to handle these questions on their own, even though the voters pamphlet already publishes official ballot titles with summaries of the measures and and a separate official explanatory statement drafted with the cooperation of supporters and opponents.

    In conclusion, unless the delegates are truly selected randomly and unless organizers of the citizen review panel are required to be nonpartisan and neutral or at least philosophically balanced there is no reason why the conclusions of the panel should be published at taxpayer expense in the official Voters Pamphlet. Overall, the process is naturally skewed towards a “No” recommendation.

  • Stephen V

    Having personally witnessed this review for the full 5 days I can say this article is utter garbage and misleading. Panelists were picked at random from 20,000 registered voters. Their information is public for anyone to see.

    How does one “screen” panelists about their thoughts on a measure BEFORE they’re to review it and why would anyone think that doing such a thing wouldn’t itself be considered bias??? Jurors in a court room are never informed of what case they will be judging until the first day of court. What kind of argument is that?

    This “phantom” author loves to make correlations between this process and our judicial system so in the spirit of that, I’ll do the same:

    1. “Fortunately, this type of bias in a decision making process would never happen in a court of law where the process has protections to be sure that jurors are fair and impartial” Is this for real? Jurors are NOT randomly picked, since both the prosecution and the defense gets to “excuse” jurors for no stated reason. Everyone knows this is done to ‘stack the deck’ one way or the other.
    2. This process was not intended to be a trial but an avenue of debate so trying to compare the two is like trying to compare apples to oranges.
    3. “Unbalanced background witnesses” The background witnesses were completely balanced. Background witnesses were only called upon by the panelists when a panelist had a question that needed more debate based on what the opponents and proponents stated in their arguments. Background witnesses were chosen specifically by panelists and no one else.
    4. “Witnesses were not under oath.” Right. Cause this isn’t a court of law, remember phantom author? Oh, and do you pre-suppose that someone under oath is hypnotized into telling the truth?
    5. “Accuracy of information was questionable at times.” Hmm. Right again. Since that was the purpose of this review. To review what might be questionable by the panelists.
    6. “No advocate questioning of witnesses allowed to bring out the whole truth.” This is totally misleading. The advocates were allowed to recommend anything they felt the panelists should question or further review. This is not a court of law and the purpose was never intended to let one advocate brow beat a witness as is regularly done in “our fair and impartial” court of law. The intention was to let the advocates make their arguments and the panel use background witnesses to support or reject those arguments.

    This measure was not supported by the panelists for the same reason many initiatives fail: it was poorly worded. Period. There were unforseen consequences specifically brought to light by the wording of the initiative. This has nothing to do with the process and everything to do with wording. All be told, the panelists were meticulous in proving just that. Objectively and fairly.

    This article is exactly the reason why these reviews will only prosper and multiply. Americans are sick and tired of one or two sided arguments with special interests. We’ll decide for ourselves the policies which effect our lives and we’re more than capable of doing it. A group of 24 just did.

  • Marvin McConoughey

    “Panelists were picked at random from 20,000 registered voters” Why only 20,000, and why were 100 percent of all Oregonians who are not registered not considered? Citizens soon-to-be of legal voting age have a stake, and so do citizens of legal voting age who are potentially future voters.

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