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.