Citizen Initiative Review Fatally Flawed – Process Unfair To Measure 73

By In the news
In: Crime & Sentencing
Saturday February 5, 2011

Oregon Anti-Crime Alliance

“With the legislature back in session, Senior Policy Advisor, Doug Harcleroad, got off to a quick start by testifying in opposition to House Bill 2634 which would make permanent citizen panels reviewing initiative measures, voting on them, and writing explanations of the measures in the voters’ pamphlet.  On behalf of the Oregon Anti-Crime Alliance, Doug participated as an advocate last summer in a panel reviewing Measure 73 – mandatory minimum sentences for repeat sex offenders and repeat (hardcore) drunken drivers.  He came away very frustrated with the lack of fairness built into the process.  Recall that Measure 73 passed with 57% in favor and 43% opposed – basically a landslide, in contrast to many close candidate races including the governor’s race.  The citizens’ panel voted 21 to 3 against Measure 73.  Obviously, their vote and written statement had little to no effect on voters.  Below is the written testimony Doug submitted, and he also testified orally and answered questions for at least 20 minutes.”

TESTIMONY OF DOUG HARCLEROAD IN OPPOSITION TO HB 2634

RULES COMMITTEE

FEBRUARY 2, 2011

CITIZEN INITIATIVE REVIEW FATALLY FLAWED

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.  HB 2634 continues this process by not providing for screening panelists for fairness and impartiality.

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.

NO ONE SCREENS CITIZEN INITIATIVE REVIEW STATEMENTS FOR ACCURACY,  AND THE FINDINGS CANNOT BE CONTESTED.

In the case of Measure 73, one of the statements opposed to the measure says:

  • “Measure 73 requires projected expenditures of $238 million over the next 10 years which must come from cuts in other programs or new taxes.”(Emphasis added)

The official financial estimate in the voter’s pamphlet actually says,

“Estimate of financial impact

The measure will require additional state spending of $1.4 million in the first year, $11.4 million to $14.6 million in the second year $13.9 million to $21.0 million in the third year, $16.7 million to $26.6 million in the fourth year and $18.1 million to $29.1 million each year after that.

The measure does not require additional local government spending. The measure directly reduces expenditures for local government by $0.4 million in the first year and $3.2 million to $4.6 million each year after that, primarily by shifting costs to the state. The measure does not increase the amount of funds collectedfor state or local government.”

The only way to get to $238 million is to take the high end of the estimate and multiply it out for 10 years and ignore the fact that themeasure directly reduces expenditures for local government.  The savings for local government over 10 years are $29.2 million to $41.8 million.  The factually accurate way to state a finding would have been to put the range in and deduct the local government expenditure savings.  I calculated the range with the savings for 10 years and the range is $122.8 million to $196.4 million.

The finding by the citizen’s initiative review of $238 million is simply wrong, and there was no way to fix it.

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

1. Unbalanced background witnesses.

  • Seven 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 forOregon.  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 1 out of 36 district attorneys was called as a background witness.  Although he had lots to say, the district attorney was limited to 20 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 two-thirds vote. It may have been her belief, but it sure wasn’t true.  In truth, it had been amended several times by the legislature.
  • No advocate questioning of witnesses allowed bringing out the whole truth.

OUR CURRENT SYSTEM PROVIDES PLENTY OF ACCURATE INFORMATION FOR VOTERS

Under current law the voters’ pamphlet provides the following:

  • Result of a “yes” vote
  • Result of a “no” vote
  • Summary
  • Estimate of financial impact
  • Text of Measure
  • Arguments in Favor
  • Arguments in Opposition

The first five items listed are all factual documents created in a fair and impartial manner.  The arguments are from proponents and opponents and are labeled as such, so readers know their sources and can evaluate them for whatever they deem them to be worth.

WHAT’S THE PURPOSE OF CITIZENS INITIATIVE REVIEWS?

I SUGGEST THE PURPOSE IS TO INFLUENCE THE VOTE OF THE PEOPLE ON ONLY SELECTED INITIATIVES, NOT REFERENDUMS OR CANDIDATES.  Should the State of Oregon try to influence how people vote by having citizen panels review measures, give them free space in the voters’ pamphlet, and not only find “facts” but also vote on the initiative measure itself?  This bill appears to contemplate state-sponsored electioneering.

I respectfully recommend you not pass HB 2634.

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